As filed with the United States Securities and Exchange
Commission on January 21, 2000.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
McMoRan Exploration Co.
(Exact name of registrant as specified in its charter)
Delaware 1615 Poydras Street 72-1424200
(State or other New Orleans, Louisiana 70112 (I.R.S. Employer
jurisdiction of incorporation (504) 582-4000 Identification Number)
or organization) (Address, including zip code,
and telephone number, including
area code, of registrant's
principal executive offices)
Copy to:
John G. Amato L. R. McMillan, II
General Counsel Jones, Walker, Waechter,
McMoRan Exploration Co. Poitevent, Carrere & Denegre,
1615 Poydras Street L.L.P.
New Orleans, Louisiana 70112 201 St. Charles Avenue, 51st
(504) 582-4000 Floor
(Name, address, including zip New Orleans, Louisiana 70170
code, and telephone (504) 582-8188
number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes
effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. __
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, please check the following box. x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. __
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. __
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. __
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate
class of securities to be price per offering Amount of
to be registered registered(1) unit(2) price(2) registration fee
------------------------------------------------------------------------------
Common Stock(3)
Preferred Stock(4)
Depositary Shares(5)
Debt Securities(6) $300,000,000(8)(9) 100% $300,000,000 $79,200
Warrants(7)
==============================================================================
(1)In United States dollars or the equivalent in one or more
foreign currencies or currency units or composite currencies,
including the European currency unit.
(2)Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457.
(3)Subject to note (8) below, we are registering an
indeterminate number of shares of common stock that we may
issue from time to time at indeterminate prices, including
shares issuable upon conversion of (a) debt securities that
are convertible into common stock or (b) preferred stock (or
depositary shares representing preferred stock) that is
convertible into common stock, and including shares issuable
upon exercise of warrants to purchase common stock.
(4)Subject to note (8) below, we are registering an
indeterminate number of shares of preferred stock that we may
issue from time to time at indeterminate prices, including
shares issuable upon conversion of debt securities that are
convertible into preferred stock, and including shares
issuable upon exercise of warrants to purchase preferred
stock. Shares of preferred stock may be convertible into
shares of common stock.
(5)Subject to note (8) below, we are registering an
indeterminate number of depositary shares that will be
evidenced by depositary receipts issued pursuant to a deposit
agreement. If we elect to offer fractional interests in
shares of preferred stock, the depositary receipts will be
distributed to those persons acquiring the fractional
interests, and the shares of preferred stock will be issued
to the depositary under the deposit agreement.
(6)Subject to note (8) below, we are registering an
indeterminate amount of debt securities that we may issue
from time to time at indeterminate prices. The debt
securities may be convertible into common stock.
(7)Subject to note (8) below, we are registering an
indeterminate number of warrants that we may issue from time
to time at indeterminate prices entitling the holder to
purchase shares of common stock, preferred stock or debt
securities.
(8)Represents the principal amount of any debt securities issued
at, or at a premium to, their principal amounts, and the
issue price rather than the principal amount of any debt
securities issued at an original issue discount; the
liquidation preference of any preferred stock; the amount
computed pursuant to Rule 457(c) for any common stock; the
issue price of any warrants; and the exercise price of any
warrants; all of which together will not exceed $300,000,000.
(9)No separate cash consideration will be received for (a)
common stock or preferred stock issuable upon conversion or
exchange of other securities registered, or (b) depositary
shares issued with respect to preferred stock.
________________
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 this registration statement
shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and does not solicit an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated January 21, 2000
Prospectus
$300,000,000
McMoRan Exploration Co.
_______________
We may use this prospectus to offer the following
securities for sale:
. Common stock
. Preferred stock
. Depositary shares
. Debt securities
. Warrants
We will provide the specific terms of the
securities we are offering in supplements to this
prospectus. A supplement may also update or change
information contained in this prospectus. This
prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
We may sell securities directly to one or more
purchasers or to or through underwriters, dealers or
agents. If any underwriters, dealers or agents are
involved in the sale of securities, the accompanying
prospectus supplement will set forth their names, the
principal amounts, if any, to be purchased by
underwriters, any applicable fees, commissions or
discounts, and the net proceeds to be received by us.
Our common stock is traded on the New York Stock
Exchange under the symbol "MMR."
You should carefully consider the risks described
under the caption "Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor
any state securities commission has approved or
disapproved these securities or passed on the adequacy
or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
The date of this prospectus is January 21, 2000.
THE COMPANY
We engage in the exploration, development and production of
oil and gas offshore in the Gulf of Mexico and onshore in the
Gulf Coast region, and in the mining, purchasing, transporting,
terminaling, processing and marketing of sulphur.
Oil and gas operations. We (and our predecessors) have
conducted oil and gas exploration, development and production
operations principally in the Gulf of Mexico and the Gulf Coast
region for more than 25 years with virtually the same team of
geologists and geophysicists. These operations have provided us
with an extensive geological and geophysical database, as well as
significant technical and operational expertise. We believe
there are significant opportunities to discover meaningful oil
and gas reserves in these areas as well as to acquire oil and gas
properties through transactions with larger companies seeking to
divest properties in the Gulf of Mexico continental shelf.
Using our extensive geophysical, technical and operational
expertise, our strategy is to
. acquire large, active exploration positions in the Gulf
of Mexico and Gulf Coast region,
. identify prospects using 3-D seismic data and other
state-of-the art technology, and
. increase reserves through exploration and development.
As part of our strategy, effective January 1, 2000, we
acquired from Texaco Exploration and Production Inc. the right to
explore and earn assignments of operating rights in 89 oil and
gas properties. The properties cover about 391,000 gross acres
and are located in water depths ranging from 10 to 2,600 feet in
federal and state waters offshore Louisiana and Texas. We have
agreed to commit $110 million for exploration through June 30,
2003. If we drill wells to specified depths that are capable of
producing and commit to install facilities to develop the oil and
gas we discover, we will earn varying interests in the prospects,
depending on the options that Texaco elects. Generally, we will
earn at least a majority of Texaco's working interest in the
property, and Texaco can elect to retain either a working
interest or an overriding royalty.
On January 14, 2000, we purchased from Shell Offshore Inc.
its interest in 56 exploratory leases containing approximately
260,000 gross acres located primarily in the Louisiana offshore
Gulf of Mexico area for a total of $37.7 million. These leases
represent a substantial portion of Shell's remaining inventory of
undeveloped lease acreage in the Louisiana offshore Gulf of
Mexico shelf area. Shell retained an overriding royalty interest
in the properties. The leases are located in water depths up to
about 2,000 feet. Shell's ownership interests in the leases
acquired ranged from 25 to 100 percent. Our acquisition of four
of the leases is subject to preferential rights.
The Texaco and Shell transactions significantly enhance our
presence on the continental shelf of the Gulf of Mexico. These
two transactions, along with our current lease inventory, give us
exploratory rights to over 170 blocks covering approximately
750,000 gross acres. We now have a substantial foundation for an
aggressive exploration program with one of the broadest
exploration acreage positions in the Gulf of Mexico held by an
independent.
Sulphur operations. We are the largest sulphur supplier in
the U.S. and operate the largest molten sulphur handling system
in the world. Our unique molten sulphur handling and
transportation system includes five sulphur terminals located
across the Gulf Coast and has all permits required by
environmental laws. We own an 83.3 percent interest in an
operating sulphur mine known as Main Pass 299, located 32 miles
offshore Louisiana. We also own an 83.3 percent interest in oil
production operations at Main Pass 299, where we produce oil from
the same geologic formation from which we mine sulphur.
Our sulphur operations consist of sulphur services and
sulphur mining. Our sulphur services primarily involve the
purchase and resale of sulphur recovered as a by-product of
hydrocarbon refining and processing, and the handling and
transportation of sulphur. Our sulphur strategy is to
. provide a reliable source of sulphur to our customers,
. increase our recovered sulphur sales and provide other
value added services to by-product sulphur producers,
<PAGE> 2
. capitalize on our leadership position as the U.S.'s
largest sulphur transporter, discretionary sulphur
producer, buyer of U.S. recovered sulphur and sulphur
supplier, and
. increase utilization of our sulphur handling and
transportation system, which is currently approximately
60 percent utilized.
Combination of McMoRan Oil & Gas and Freeport Sulphur. Our
company was created on November 17, 1998 when McMoRan Oil & Gas
Co. and Freeport-McMoRan Sulphur Inc. combined their operations.
As a result, McMoRan Oil & Gas LLC and Freeport-McMoRan Sulphur
LLC (Freeport Sulphur) became our wholly owned subsidiaries. The
transaction was treated for accounting purposes as a purchase,
with McMoRan Oil & Gas as the acquiring entity. As a result, our
financial information for periods prior to the transaction
reflect only the historical operations of McMoRan Oil & Gas. The
operations of Freeport Sulphur are included on and after November
17, 1998. For the year ended December 31, 1999, approximately 81
percent of our earnings before interest, taxes, depreciation and
amortization, excluding exploration expenses, were from oil and
gas operations and 19 percent were from sulphur operations.
The address and telephone number of our principal executive
offices are:
1615 Poydras Street
New Orleans, Louisiana 70112
(504) 582-4000
<PAGE> 3
FORWARD-LOOKING STATEMENTS
This prospectus includes (or incorporates by reference)
"forward looking statements" within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act, including
statements about our plans, strategies, expectations, assumptions
and prospects. "Forward-looking statements" are all statements
other than statements of historical fact, such as statements
regarding drilling potential and results; anticipated flow rates
of producing wells; reserve estimates and depletion rates;
general economic and business conditions; risks and hazards
inherent in the production of oil, natural gas and sulphur;
demand and potential demand for oil and gas and for sulphur;
trends in commodity prices; amounts and timing of capital
expenditures and abandonment, closure and reclamation costs; the
need for and availability of financing; our reliance on IMC-
Agrico as a customer; competitive trends; and environmental
issues.
We caution you that our forward-looking statements are not
guarantees of future performance, and our actual results may
differ materially from those projected, anticipated or assumed in
the forward-looking statements. We undertake no obligation to
publicly update or revise any forward-looking statements.
Important factors that can cause our actual results to differ
materially from those anticipated in the forward-looking
statements include those described below under "Risk Factors."
RISK FACTORS
In addition to the other information in this prospectus, you
should carefully consider the following factors in evaluating our
company and our business before purchasing any securities.
Factors Relating to Our Oil and Gas Operations
The future financial results of our oil and gas business are
difficult to forecast primarily because the business has a
limited operating history and the results of our exploration
strategy are inherently unpredictable.
McMoRan Oil & Gas commenced operations in 1994. We
currently have six fields in production. Much of our oil and gas
business is devoted to exploration, the results of which are
inherently unpredictable. We use the successful efforts
accounting method for our oil and gas exploration and development
activities. This method requires us to expense geological and
geophysical costs and the costs of dry holes as they occur,
rather than capitalize these costs as required by the full cost
accounting method. Because of the timing in incurring
exploration costs and realizing revenues from successful
properties, losses may be reported even though exploration
activities may be successful during a reporting period.
Accordingly, depending on the results of our exploration program,
we may continue to incur losses as we pursue significantly
expanded exploration programs. We cannot assure you that our oil
and gas operations will achieve or sustain positive earnings or
cash flows from operations in the future.
Our exploration and development activities may not be
commercially successful.
Oil and natural gas exploration and development involve a
high degree of risk that hydrocarbons will not be found, that
they will not be found in commercial quantities, or that their
production will be insufficient to recover drilling, completion
and operating costs. The 3-D seismic data and other technologies
we use do not allow us to know conclusively prior to drilling a
well that oil or gas are present or economically producible. The
cost of drilling, completing and operating a well is often
uncertain, especially when drilling offshore, and cost overruns
can adversely affect the economics of a project. Our drilling
operations may be curtailed, delayed or canceled as a result of
numerous factors, including (1) unexpected drilling conditions,
(2) unexpected pressure or irregularities in formations, (3)
equipment failures or accidents, (4) title problems, (5) adverse
weather conditions, (6) regulatory requirements and (7)
unavailability of equipment or labor. Furthermore, completion of
a well does not guarantee that it will be profitable or even that
it will result in recovery of drilling, completion and operating
costs.
Our future performance depends on our ability to add reserves.
Our future financial performance depends in large part on
our ability to find, develop and produce oil and gas reserves
that are economically recoverable. Without successful
exploration and development activities or
<PAGE> 4
reserve acquisitions,
our reserves will be depleted. We cannot assure you that we will
be able to find, develop, produce or acquire additional reserves
on an economic basis.
Although we are currently emphasizing reserve growth through
exploratory drilling, we may from time to time acquire producing
properties and/or properties with proved undeveloped reserves.
Evaluation of recoverable reserves of oil and natural gas, which
is an integral part of the property selection process, depends on
the assessment of geological, engineering and production data,
some or all of which may prove to be unreliable and not
indicative of future performance. Accordingly, we cannot assure
you that we will make a profit or fully recover our cost on any
reserves that we purchase.
Our revenues, profits and growth rates may vary significantly
with fluctuations in the market prices of oil and natural gas.
Approximately $54.3 million of our revenues for the year
ended December 31, 1999 were derived from the sale of oil and
natural gas. In recent years, oil and natural gas prices have
fluctuated widely. We have no control over the factors affecting
prices, which include the market forces of supply and demand, as
well as the regulatory and political actions of domestic and
foreign governments, and the attempts of international cartels to
control or influence prices. Any significant or extended decline
in oil and gas prices will have a material adverse effect on our
profitability, financial condition and operations.
If we are unable to generate sufficient cash from operations
or obtain financing when needed, we may find it necessary to
curtail our operations.
We must make substantial expenditures to conduct exploratory
activities and to develop oil and gas reserves. We cannot assure
you that we will generate sufficient cash from operations or
obtain financing when needed to conduct our exploration program
and develop our properties. Our future cash flow from operations
will depend on our ability to locate and produce hydrocarbons in
commercial quantities and on market prices for oil and gas, among
other things.
The amount of oil and gas that we actually produce, and the
net cash flow that we receive from that production, may differ
materially from the amounts reflected in our reserve
estimates.
Our estimates of proved oil and gas reserves reflected in
our Form 10-K reports are based on reserve engineering estimates
using Securities and Exchange Commission (SEC) guidelines.
Reserve engineering is a subjective process of estimating
recoveries from underground accumulations of oil and natural gas
that cannot be measured in an exact manner. The accuracy of any
reserve estimate depends on the quality of available data and the
application of engineering and geological interpretation and
judgment. Estimates of economically recoverable reserves and
future net cash flows depend on a number of variable factors and
assumptions, such as (1) historical production from the area
compared with production from other producing areas, (2)
assumptions concerning future oil and gas prices, future
operating and development costs, workover, remedial and
abandonment costs, severance and excise taxes, and (3) the
assumed effects of government regulation. All of these factors
and assumptions are difficult to predict and may vary
considerably from actual results. In addition, different reserve
engineers may make different estimates of reserve quantities and
cash flows based upon varying interpretations of the same
available data. Also, estimates of proved reserves for wells
with limited or no production history are less reliable than
those based on actual production history. Subsequent evaluation
of the same reserves may result in variations, which may be
substantial, in our estimated reserves. As a result, all reserve
estimates are inherently imprecise.
You should not construe the estimated present values of
future net cash flows from proved oil and gas reserves
incorporated by reference into this prospectus as the current
market value of our estimated proved oil and gas reserves. In
accordance with applicable SEC requirements, we have estimated
the discounted future net cash flows from proved reserves based
on prices and costs generally prevailing at or near the date of
the estimate. Actual future prices and costs may be materially
higher or lower. Future net cash flows also will be affected by
factors such as the actual amount and timing of production,
curtailments or increases in consumption by gas purchasers, and
changes in governmental regulations or taxation. In addition, we
have used a 10 percent discount factor, which the SEC requires
all companies to use to calculate discounted future net cash
flows for reporting purposes. That is
<PAGE> 5
not necessarily the most
appropriate discount factor to be used in determining market
value, since interest rates vary from time to time, and the risks
associated with operating particular oil and gas properties can
vary significantly.
Shortages of supplies, equipment and personnel may adversely
affect our operations.
Our ability to conduct operations in a timely and cost
effective manner depends on the availability of supplies,
equipment and personnel. The offshore oil and gas industry is
cyclical and experiences periodic shortages of drilling rigs,
work boats, tubular goods, supplies and experienced personnel.
Shortages can delay operations and materially increase operating
and capital costs.
The oil and gas exploration business is very competitive, and
most of our competitors are larger and financially stronger
than we are.
The business of oil and gas exploration, development and
production is intensely competitive, and we compete with many
companies that have significantly greater financial and other
resources than we have. Our competitors include the major
integrated oil companies and a substantial number of independent
exploration companies. We compete with these companies for
property acquisitions, supplies, equipment and labor. These
competitors may, for example, be better able to (1) pay more for
exploratory prospects, (2) purchase a greater number of
properties, (3) access less expensive sources of capital, (4)
access more information relating to prospects, (5) develop or
buy, and implement, new technologies, and (6) obtain equipment
and supplies on better terms.
Because a significant part of our reserves and production is
concentrated in a small number of offshore properties, any
production problems or significant changes in reserve
estimates related to any one of those properties could have a
material impact on our business.
All of our reserves and production come from our six fields
in the shallow waters of the Gulf of Mexico. If mechanical
problems, storms or other events curtailed a substantial portion
of this production, our cash flow would be adversely affected.
Our Brazos Block A-19 field commenced production on October 16,
1999, and during a shutdown on November 15, 1999, the operator
detected a pressure buildup in the production casing and
subsequently found significant damage to the production tubing.
The well currently remains shut-in, and the operator is
formulating a plan to restore the well back onto production.
While the estimates of proved reserves for the well remain
unchanged, additional costs will be required to restore
production, and revenues from the well will be delayed.
We are vulnerable to risks associated with the Gulf of Mexico
because we currently explore and produce exclusively in that
area.
We believe that concentrating our activities in the Gulf of
Mexico is advantageous because of our extensive experience
operating in that area. However, this strategy makes us more
vulnerable to the risks associated with operating in that area
than those of our competitors with more geographically diverse
operations. These risks include (1) adverse weather conditions,
(2) difficulties securing oil field services, and (3) compliance
with regulations. In addition, production of reserves from
reservoirs in the Gulf of Mexico generally declines more rapidly
than from reservoirs in many other producing regions of the
world. This results in recovery of a relatively higher
percentage of reserves from properties in the Gulf of Mexico
during the initial years of production, and, as a result, our
reserve replacement needs from new prospects are greater.
We cannot control the activities on properties we do not
operate.
Other companies operate some of the properties in which we
have an interest. As a result, we have a limited ability to
exercise influence over operations for these properties or their
associated costs. The success and timing of our drilling and
development activities on properties operated by others therefore
depend upon a number of factors outside of our control, including
(1) timing and amount of capital expenditures, (2) the operator's
expertise and financial resources, (3) approval of other
participants in drilling wells, and (4) selection of technology.
<PAGE> 6
Factors Relating to Our Sulphur Operations
Our revenues, profits and growth rates may vary significantly
with fluctuations in the market price of sulphur; the long-
term economic feasibility of our Main Pass sulphur mine may be
impaired if there were a sustained decline in sulphur prices
from recent levels.
Sulphur prices have declined in recent months to the mid-
range of prices experienced in the 1990s. If prices were to fall
to the lower end of the range, we would not be at the minimum
prices required for us to generate positive cash flow from our
Main Pass sulphur mining operations. In response to declining
prices, we announced on June 30, 1998 that we would permanently
discontinue sulphur production at our Culberson mine, and we
discontinued those operations on June 30, 1999. Although we are
currently pursuing cost reductions at our Main Pass sulphur
operations, a sustained decline in the price of sulphur from
recent levels could make continued operation of the mine
uneconomical. Because of the costs associated with closing and
re-opening mine sites, as well as the potential loss of mining or
mineral development rights if mining operations were suspended,
we could decide to operate at Main Pass for some period even if
those operations did not generate positive cash flow. If our
Main Pass operations were suspended, it could be difficult and
expensive to subsequently re-open the mine.
We rely heavily on IMC-Agrico as a continuing customer under
the terms of a long-term sulphur supply agreement, and we are
involved in a dispute with them about the pricing terms of
that agreement.
Approximately 73 percent of sulphur sales for the year ended
December 31, 1999 were made to IMC-Agrico under a long-term
sulphur supply agreement, and we expect that sales to IMC-Agrico
under that agreement will continue to represent a substantial
percentage of our sulphur sales. Sales of sulphur to IMC-Agrico
are based on market prices and include a premium with respect to
approximately 40 percent of the sales. The agreement requires
IMC-Agrico to purchase approximately 75 percent of its annual
sulphur consumption from us as long as it has a requirement for
sulphur. The loss of, or a significant decline in, sales of
sulphur to IMC-Agrico could have a material adverse effect on our
financial condition and results of operations.
In the fourth quarter of 1999, several domestic phosphate
fertilizer producers announced production curtailments, including
a 20 percent reduction by IMC-Agrico. These curtailments
resulted primarily from global price decreases for phosphate
fertilizers. As a result, IMC-Agrico curtailed its sulphur
purchases from us in the fourth quarter. We expect that our
future sulphur sales to IMC-Agrico will also be curtailed, at
least in the near term.
Our sulphur supply agreement with IMC-Agrico contains a
provision that requires good faith renegotiation of the pricing
provisions if a party can prove that fundamental changes in IMC-
Agrico's operations or the sulphur and sulphur transportation
markets invalidate certain assumptions and result in the
performance by that party becoming "commercially impracticable"
or "grossly inequitable." In the fourth quarter of 1998, IMC-
Agrico attempted to invoke this contract provision in an effort
to renegotiate the pricing terms of the sulphur supply agreement.
After careful review of the agreement, IMC-Agrico's operations
and the referenced markets, we determined that there is no basis
for renegotiation of the pricing provisions under the terms of
the agreement. After discussions failed to resolve this dispute,
we filed suit against IMC-Agrico seeking a judicial declaration
that no basis exists under the agreement for a renegotiation of
its pricing terms.
In the fourth quarter of 1999, three of our major customers
announced plans to build a solid sulphur handling and melting
facility in Tampa, Florida with a design capacity of up to 2.0
million long tons of liquid sulphur annually. We cannot
predict what effect, if any, the facility would have on our
sulphur sales, if and when it becomes operational.
The facility would allow these customers and potentially
others to import solid sulphur. Thus, customers would have new
sources of sulphur supply that, depending on its ultimate costs
compared to our costs, could be more cost-competitive than our
sulphur. The announcement stated that the plant is not expected
to be operational until mid-2001. Solid sulphur handling is
widely recognized as inferior from an environmental standpoint to
molten sulphur handling, which is currently used throughout
Florida. The plant will need to obtain appropriate permits and
meet stringent state and federal environmental law requirements.
If the appropriate permits are received and the
<PAGE> 7
plant is
constructed, we believe that, based on current sulphur costs,
associated transportation and handling costs, melting costs and
the cost of capital, this type of facility will not be cost
competitive.
We cannot predict when or if the plant will be operational
or what impact it will have, if any, on our sulphur sales,
although it is possible that our sulphur sales could be adversely
affected. We currently have solid sulphur melting capabilities
in Galveston, Texas and Port Sulphur, Louisiana, and these
facilities have all permits required under current environmental
laws. All of our sulphur is currently handled in molten form;
however, we intend to remain competitive in sourcing and handling
sulphur in whatever form is commercially preferable.
Our minority joint venture partner in the Main Pass mine
claims that it has exercised its contractual right to elect
not to receive its share of sulphur produced at the mine
during 2000, not to pay its share of operating expenses for
2000 and not to pay us any fees for 2000 under our processing
and marketing agreement.
Homestake Sulphur Company LLC is our 16.7 percent partner in
the Main Pass mine. Under our agreements with Homestake,
Homestake may elect to waive its right to produce its share of
sulphur for one year at a time if conditions described in the
agreements are met. In that event, Homestake would be relieved
of its obligation to pay some of its share of operating expenses
during that year. Homestake claims that it has made this
election for 2000 and that, as a result, it is also not obligated
to pay us any fees for 2000 under our processing and marketing
agreement.
We have advised Homestake that in our opinion the conditions
precedent to its right to make the election do not exist.
Homestake has filed suit seeking a declaratory judgment
supporting its position and has not paid the first monthly
installment of its operating expenses for 2000. We believe that
the election, even if effectively made, will not have a material
adverse effect on our financial condition or results of
operations, except that we may lose approximately $500,000 per
quarter of operating income from fees in 2000 under our
processing and marketing agreement with Homestake unless we are
successful in the litigation.
The competitive conditions in our sulphur business are
complex, both in terms of factors affecting supply and factors
affecting demand; sulphur prices are influenced by (1) world
agricultural conditions, (2) the phosphate fertilizer market,
(3) the rate of recovery of sulphur from oil and natural gas
refining, and (4) the handling and transportation costs
required to move sulphur to market.
There are two principal sources of elemental sulphur: (1)
mined sulphur and (2) recovered sulphur, which is a by-product of
oil refining and gas processing. Recovered sulphur from domestic
and foreign sources is the major source for most sulphur
customers and is our major source of competition. Because
recovered sulphur is a by-product of the producer's refining or
processing operations, its cost to customers depends in large
part on handling and transportation costs. Production of
recovered sulphur in the United States has increased at an
average rate of approximately 150,000 long tons per year for the
last three years.
Because the supply of U.S. recovered sulphur alone cannot
meet total domestic demand, mined sulphur, along with imported
recovered sulphur obtained principally from Canada and Mexico, is
required to supply the balance. Canadian recovered sulphur
producers have facilities for storing excess sulphur production
in solid form for unlimited periods of time, and thus can wait
for favorable market conditions to sell this sulphur. Nearly all
of the Western Hemisphere's sulphur inventories currently consist
of sulphur stored in solid form in the province of Alberta in
western Canada.
Since the early 1990s, the sulphur price at Tampa, Florida
has generally moved in the range of $55-$75 per long ton. We
believe market forces that define this range will continue for
the foreseeable future, absent a major supply disruption or a
substantial increase in demand. On the low end of the price
range, overland freight rates from western Canada to central
Florida tend to set a price floor. On the high end, the amount
of supply that can profitably access the market effectively sets
a price cap. Accordingly, depending on prices in the other
foreign markets they supply, Canadian producers can be expected
to progressively increase sulphur shipments to U.S. markets as
price levels in U.S. sulphur markets rise within the $55-$75 per
long ton range.
The principal competitive risks to our ability to mine
sulphur profitably are (1) decreased domestic demand for sulphur,
(2) increased production from domestic recovered sulphur
producers, and (3) increases in imported
<PAGE> 8
recovered sulphur,
including increases in the rate at which stored sulphur,
particularly in Canada, is released into the market. In
addition, the current levels of Canadian sulphur production and
inventories limits our potential to realize significant price
increases for our sulphur even if demand improves.
The market for sulphur is seasonal and cyclical, and market
prices for sulphur can fluctuate widely.
Because the principal use of sulphur is in the manufacture
of phosphate fertilizers, our ability to successfully market our
sulphur is materially dependent on prevailing agricultural
conditions and the worldwide demand for fertilizers. Although
phosphate fertilizer sales are fairly constant month-to-month,
seasonal increases occur in the domestic market prior to the fall
and spring planting season. Generally, domestic phosphate
fertilizer sales are at reduced levels after the spring planting
season, although the decline in domestic sales generally
coincides with the time when major commercial and governmental
buyers in China, India and Pakistan purchase product for mid-year
delivery in those countries.
Fertilizer sales are also cyclical, as they are influenced
by current and projected grain inventories and prices, quantities
of fertilizers imported to and exported from North America,
domestic fertilizer consumption and the agricultural policies of
foreign governments. Currently, the market for phosphate
fertilizers is soft, which we believe is primarily the result of
three factors: (1) a world oversupply of grain, which has led to
falling grain prices and a decreased demand for phosphate
fertilizers, (2) an oversupply of fertilizer worldwide and (3) an
anticipated increase in worldwide fertilizer production capacity
from two new plants under construction in India and Australia.
We continue to believe that the long-term fundamentals of the
phosphate fertilizer business remain sound. These fundamentals
include expected growth in world population and increased meat
consumption in many undeveloped countries.
Market prices for sulphur will likely continue to fluctuate.
For example, in 1999 U.S. sulphur prices fluctuated between
$62.50 and $71.50 per long ton. The operating margins and cash
flow from our sulphur business are subject to substantial
fluctuations in response to changes in supply and demand for
sulphur, conditions in the U.S. and international agriculture
industry, market uncertainties and other factors beyond our
control. Any significant or extended decline in sulphur prices
will have a material adverse effect on our financial condition
and operations.
Our sulphur mining operations are sensitive to changes in
natural gas prices.
In the year ended December 31, 1999, we sold approximately
14.0 Bcf of natural gas in our oil and gas operations and
consumed approximately 7.6 Bcf of natural gas in our sulphur
mining operations. Natural gas is our most significant variable
cost in operating our sulphur mine. We estimate that a 10 cent
increase in natural gas prices would have resulted in a $1.4
million increase in our gas sales revenue and a $0.8 million
increase in our cost of mining sulphur for the year ended
December 31, 1999. A 10 cent decrease in natural gas prices
would result in a corresponding decrease in gas sales revenue and
decrease in mining costs.
The amount of sulphur that we actually produce may differ
materially from the amounts that we expect based on our
reserve estimates. In addition, our reserve estimates can
change significantly based on changes in the factors
underlying the assumptions we use in determining the reserves.
We recently reduced our proved reserves for our Main Pass
mine from 52.4 million long tons at December 31, 1998 to 13.7
million long tons at December 31, 1999.
Proved reserves are estimated quantities of commercially
recoverable minerals that geological, geophysical and engineering
data can demonstrate with a reasonably high degree of certainty
to be recoverable in the future from known mineral deposits by
conventional operating methods. Our estimates of proved sulphur
reserves at Main Pass are based on engineering estimates and
assumptions about future economic and operating conditions. All
of our sulphur reserves are considered physically producible
because of our extensive drilling and production experience.
However, reserve engineering is a subjective process of
estimating the recovery from underground accumulations of sulphur
that cannot be measured in an exact manner. The accuracy of any
reserve estimate is a function of the quality of available data
and of engineering and geological interpretation and judgment.
In addition, estimates of economically recoverable reserves
depend upon a number of variable factors and assumptions, such as
assumptions concerning future (1) sulphur prices and production
rates, (2) operating and development costs,
<PAGE> 9
including natural gas
prices, (3) processing, transportation and handling costs, (4)
workover, remedial and abandonment costs, (5) severance and
excise taxes, and (6) government regulation. Variations in these
items can cause reserve estimates to change even in the absence
of changes in assumptions regarding the size or physical
characteristics of the reservoirs. In particular, the sulphur
and oil reservoirs at our Main Pass mine are highly sensitive to
product prices and production volumes because of their relatively
high level of fixed production costs.
We recently reduced our proved reserves for our Main Pass
mine from 52.4 million long tons at December 31, 1998 to 13.7
million long tons at December 31, 1999. Although our estimated
physically producible sulphur reserves have not changed, we have
reduced our estimates of commercially recoverable reserves
primarily based on our expectations of decreased production rates
at the mine, partially offset by an anticipated decrease in
costs. These factors have also caused us to reduce the expected
useful life of the mine from 30 years to 10 years. The reduction
in the anticipated mine life will require us to accelerate
accruals of our estimated $59.5 million abandonment and
reclamation costs for the mine, resulting in an increase in
accruals by approximately $3.0 million per year. We will be
required to fund these costs once we permanently close the mine.
The price of sulphur is a critical factor in the determination
of commercially recoverable reserves. A future increase in
sulphur prices could result in a restoration of the reserves
being reduced at year-end 1999.
Factors Relating to Our Operations Generally
Our historical financial information may be of limited
relevance because our sulphur operations are included in our
historical financial information only for periods on and after
November 17, 1998.
Our company was created on November 17, 1998 when McMoRan
Oil & Gas Co. and Freeport-McMoRan Sulphur Inc. combined their
operations in a merger. The merger was treated for accounting
purposes as a purchase, with McMoRan Oil & Gas as the acquiring
entity. As a result, our financial information for periods prior
to the merger reflect the historical operations of McMoRan Oil &
Gas. The operations of Freeport Sulphur are included only on and
after November 17, 1998.
Offshore operations are hazardous, and the hazards are not
fully insurable.
Our operations are subject to the hazards and risks inherent
in drilling for, producing and transporting sulphur, oil and
natural gas. These hazards and risks include fires, natural
disasters, abnormal pressures in formations, blowouts, cratering,
pipeline ruptures and spills. If any of these or similar events
occur, we could incur substantial losses as a result of death,
personal injury, property damage, pollution and lost production.
Moreover, our drilling, production and transportation operations
in the Gulf of Mexico are subject to operating risks peculiar to
the marine environment. These risks include hurricanes and other
adverse weather conditions, more extensive governmental
regulation (including regulations that may, in certain
circumstances, impose strict liability for pollution damage) and
interruption or termination of operations by governmental
authorities based on environmental, safety or other
considerations.
We have in place liability, property damage, business
interruption and other insurance coverages in types and amounts
that we consider reasonable and believe to be customary in our
business. This insurance provides protection against loss from
some, but not all, potential liabilities incident to the ordinary
conduct of our business. Our insurance includes coverage for
some types of damages associated with environmental and other
liabilities that arise from sudden, unexpected and unforeseen
events, with coverage limits, retentions, deductibles and other
features as we deem appropriate. The occurrence of an event that
is not fully covered by insurance could have a material adverse
effect on our financial condition and results of operations.
Our operations are subject to extensive governmental
regulation, compliance with which is very expensive; changes
in the regulatory environment can occur at any time and
generally increase our costs.
Our operations are subject to extensive regulation under
federal and state law, and can be affected materially by
political developments and resulting changes in laws and
regulations. The operations and economics of oil and natural gas
exploration, production and development and sulphur production
are, or historically have been, affected by price controls, tax
policy and environmental regulation. We cannot predict how
existing laws and regulations may be interpreted by enforcement
agencies or the courts, whether additional laws and regulations
will
<PAGE> 10
be adopted, or the effect these changes may have on our
business or financial condition, but changes that have occurred
in the past generally have been more restrictive and have
increased our cost of operation.
In particular, our operations are subject to numerous laws
and regulations governing the discharge of materials into the
environment or otherwise relating to environmental protection.
These laws and regulations (1) require us to acquire permits
before we begin drilling, (2) restrict the types, quantities and
concentrations of substances that we can release into the
environment, (3) limit or prohibit drilling on some lands lying
within wilderness, wetlands and other protected areas, and (4)
impose substantial liabilities for pollution that could result
from our operations. We have incurred, and may in the future
incur, capital expenditures and operating expenses to comply with
these laws and regulations, some of which may be significant.
Continued governmental and public emphasis on environmental
issues may result in increased capital and operating costs in the
future, although we cannot predict or quantify the impact of
future laws and regulations or future changes to existing laws
and regulations.
The recent trend toward stricter standards in environmental
legislation and regulation is likely to continue. For instance,
legislation has been proposed in Congress from time to time that
would reclassify some crude oil and natural gas exploration and
production wastes as "hazardous wastes," which would make the
wastes subject to significantly more stringent handling, disposal
and clean-up requirements. If this or similar legislation is
enacted, it could have a significant impact on our operating
costs. Initiatives to further regulate the disposal of crude oil
and natural gas wastes are also pending in some states and could
have a similar impact. In addition to compliance costs,
government entities and other third parties may assert claims for
substantial liabilities against owners and operators of sulphur
mining and oil and gas properties for oil spills, discharges of
hazardous materials, remediation and clean-up costs and other
environmental damages, including damages caused by previous
property owners. If such claims arise, we could be held liable
in legal proceedings, which could have a material adverse effect
on our financial condition and results of operations.
Federal legislation (sometimes referred to as "Superfund"
legislation) imposes liability, without regard to fault, for
clean-up of waste sites, even though waste management activities
at the site were in compliance with regulations applicable at the
time of disposal. Under the Superfund legislation, one
responsible party may be required to bear more than its
proportional share of clean-up costs if adequate payments cannot
be obtained from other responsible parties. In addition, federal
and state regulatory programs and legislation mandate clean-up of
specified wastes at operating sites. Governmental authorities
have the power to enforce compliance with these regulations and
permits, and violators are subject to civil and criminal
penalties, including fines, injunctions or both. Third parties
also have the right to pursue legal actions to enforce
compliance. Liability under these laws can be significant and
unpredictable.
We may in the future receive notices from governmental
agencies that we are a potentially responsible party under
relevant federal and state environmental laws, although we are
not aware of any pending notices. Some of these sites may
involve significant clean-up costs. The ultimate settlement of
liability for the clean-up of these sites usually occurs many
years after the receipt of notices identifying potentially
responsible parties because of the many complex technical, legal
and financial issues associated with site clean-up. We cannot
predict our potential liability for clean-up costs that we may
incur in the future.
The Oil Pollution Act of 1990 (the "OPA") imposes a variety
of regulations on "responsible parties" related to the prevention
of oil spills. We could be materially and adversely affected by
the implementation of new, or the modification of existing,
environmental laws or regulations, including regulations
promulgated pursuant to the OPA.
In connection with its spin-off from Phosphate Resource
Partners (formerly named Freeport-McMoRan Resource Partners,
Limited Partnership) in December 1997, Freeport Sulphur assumed
responsibility for potential liabilities, including environmental
liabilities, associated with the prior conduct of the businesses
contributed by Phosphate Resource Partners to Freeport Sulphur.
Among these are potential liabilities arising from sulphur mines
that were depleted and closed in the past in accordance with
reclamation and environmental laws in effect at the time,
particularly in coastal or marshland areas that have experienced
subsidence or erosion. We believe that we are in compliance with
existing laws regarding these closed operations, and we have
implemented controls in some
<PAGE> 11
areas that we believe exceed our
legal responsibilities. Nevertheless, it is possible that new
laws or actions by governmental agencies could result in
significant unanticipated additional reclamation costs.
We could also be subject to potential liability for personal
injury or property damage relating to wellheads and other
materials at closed mines in coastal areas that have become
exposed through coastal erosion. Although we have insurance in
place to protect against some of these liabilities, we cannot
assure you that this insurance coverage would be sufficient.
There can also be no assurance that our current or future
accruals for reclamation costs will be sufficient to fully cover
the costs.
Hedging our production may result in losses.
Our hedging has to date been limited to natural gas option
contracts related to our Main Pass sulphur operations and forward
oil sales contracts related to our Main Pass oil operations. We
may in the future enter into these and other types of hedging
arrangements to reduce our exposure to fluctuations in the market
prices of natural gas and oil. Hedging exposes us to risk of
financial loss in some circumstances, including if (1) production
is less than expected, (2) the other party to the contract
defaults on its obligations, or (3) there is a change in the
expected differential between the underlying price in the hedging
agreement and actual prices received. In addition, hedging may
limit the benefit we would have otherwise received on a
consolidated basis from increases in the prices for natural gas
and oil. Furthermore, if we do not engage in hedging, we may be
more adversely affected by changes in natural gas and oil prices
than our competitors who engage in hedging.
Our holding company structure may limit our financial
flexibility.
We conduct our business through wholly owned subsidiaries.
As a result, we depend on the cash flow of our subsidiaries and
distributions from them to meet our financial obligations.
Future agreements with lenders to our subsidiaries may contain
restrictions or prohibitions on the payment of dividends by the
subsidiaries to us.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, we
will use the net proceeds from the sale of the securities for
general corporate purposes, which may include the repayment of
debt, acquisitions, capital expenditures and working capital.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges was as follows for
the years and period indicated:
Years ended December 31,
-----------------------------------------
1995 1996 1997 1998 1999
----- ----- ----- ---- -----
--(a) --(a) --(a) --(a) 1.02x
______________________
(a) There were no fixed charges during 1995. During 1996,
1997 and 1998, we recorded net losses of $9.8 million, $10.5
million and $18.1 million, respectively. These losses were
inadequate to cover our fixed charges of $0.4 million in 1996,
$1.3 million in 1997 and $1.3 million in 1998.
For this calculation, earnings consist of (1) income from
continuing operations before income taxes, (2) minority interests
and (3) fixed charges. Fixed charges include interest and that
portion of rent we believe to be representative of interest.
Information for periods prior to November 17, 1998 reflect only
the historical operations of McMoRan Oil & Gas Co. The
operations of Freeport Sulphur are included on and after November
17, 1998. See "The Company."
<PAGE> 12
DESCRIPTION OF COMMON STOCK
General
As of the date of this prospectus, our certificate of
incorporation authorized us to issue up to 150,000,000 shares of
common stock, par value $0.01 per share and up to 50,000,000
shares of preferred stock, par value $0.01 per share. As of
January 18, 2000, 12,596,972 shares of common stock and no
shares of preferred stock were outstanding. Our common stock is
listed on the New York Stock Exchange under the symbol "MMR."
Voting Rights
Each holder of our common stock is entitled to one vote for
each share of common stock held of record on all matters as to
which stockholders are entitled to vote. Holders of our common
stock may not cumulate votes for the election of directors.
Dividends
Subject to any preferences accorded to the holders of our
preferred stock, if and when issued by the board of directors,
holders of our common stock are entitled to dividends at such
times and amounts as the board of directors may determine. We do
not intend to pay dividends for the foreseeable future.
Other Rights
In the event of a voluntary or involuntary liquidation,
dissolution or winding up of our company, prior to any
distributions to the holders of our common stock, our creditors
and the holders of our preferred stock, if any, will receive any
payments to which they are entitled. Subsequent to those
payments, the holders of our common stock will share ratably,
according to the number of shares held by them, in our remaining
assets, if any.
Shares of our common stock are not redeemable and have no
subscription, conversion or preemptive rights.
Provisions of our Certificate of Incorporation
Our certificate of incorporation contains provisions that
are designed in part to make it more difficult and time-consuming
for a person to obtain control of our company unless they pay a
required value to our stockholders. Some provisions also are
intended to make it more difficult for a person to obtain control
of our board of directors. These provisions reduce the
vulnerability of our company to an unsolicited takeover proposal.
On the other hand, these provisions may have an adverse effect
on the ability of stockholders to influence the governance of our
company. You should read our certificate of incorporation and
bylaws for a more complete description of the rights of holders
of our common stock.
Classified Board of Directors. Our certificate of
incorporation divides the members of our board of directors into
three classes serving three-year staggered terms. The
classification of directors has the effect of making it more
difficult for our stockholders to change the composition of our
board. At least two annual meetings of stockholders may be
required for the stockholders to change a majority of the
directors, whether or not a majority of our stockholders believes
that this change would be desirable.
Supermajority Voting/Fair Price Requirements. Our
certificate of incorporation provides that a supermajority vote
of our stockholders and the approval of our directors as
described below are required for:
. any merger, consolidation or share exchange of our
company or any of our subsidiaries with any person or
entity, or any affiliate of that person or entity, who
was within the two years prior to the transaction a
beneficial owner of 15% or more of our common stock or
any class of our common stock (an "interested party");
. any sale, lease, transfer, exchange, mortgage, pledge,
loan, advance or other disposition of assets of our
company or any of our subsidiaries having a market
value of 5% or more of the total
<PAGE> 13
market value of our
company's outstanding common stock or our company's net
worth as of the end of its most recently ended fiscal
quarter, whichever is less, in one or more transactions
with or for the benefit of an interested party;
. the adoption of any plan or proposal for liquidation or
dissolution of our company or any of our subsidiaries;
. the issuance or transfer by our company or any of our
subsidiaries of securities having a fair market value
of $1 million or more to any interested party, except
for the exercise of warrants or rights to purchase
securities offered pro rata to all holders of our
voting stock;
. any recapitalization, reclassification, merger,
consolidation or similar transaction of our company or
any of our subsidiaries that would increase an
interested party's voting power in our company or any
of our subsidiaries;
. any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or advantages
provided by our company or any of our subsidiaries to
any interested party; or
. any agreement providing for any of the transactions
described above.
To effect the transactions described above, the following
shareholder and director approvals are required:
. the vote of the holders of 80% of our outstanding
common stock;
. the vote of the holders of 75% of our outstanding
common stock, excluding stock owned by interested
parties;
. a majority of our directors currently in office; and
. a majority of our directors who are not affiliates of
the interested party and who were members of our board
prior to the time the interested party became an
interested party or directors appointed by these board
members.
However, the requirements for approval of our directors and
supermajority vote of our stockholders described above are not
applicable if:
. the transactions described above are between our
company and any of our subsidiaries, any person who
owned shares of our common stock prior to the date our
certificate of incorporation was first filed with the
Delaware Secretary of State, any of our employee
benefit plans, or a trustee or custodian of one of our
employee stock ownership plans or other benefit plans;
or
. our board approves the transaction prior to the time
the interested party becomes an interested party and
the vote includes the affirmative vote of a majority of
our directors who are not affiliates of the interested
party and who were members of our board prior to the
time the interested party became the interested party;
or
. all of the following conditions are met:
. the aggregate amount of consideration received by
our stockholders in the transaction meet the "fair
price" criteria described in our certificate of
incorporation; and
. after an interested party becomes an interested
party and prior to the completion of the
transaction:
. our company has not failed to declare or pay
dividends on any outstanding preferred stock
<PAGE> 14
. the interested party has not received
benefits (except proportionately as a
stockholder) of any loans, advances or other
financial assistance or tax advantage
provided by our company
. our company has not reduced the annual rate
of dividends paid on our common stock, except
as necessary to reflect adjustments or stock
splits, and has not failed to increase the
annual rate of dividends to adjust for any
recapitalization, reclassification,
reorganization or similar transaction; and
. the interested party has not become the
beneficial owner of additional shares of our
voting stock except as part of the
transaction that resulted in the interested
party becoming an interested party or as a
result of a pro rata stock dividend.
No Stockholder Action by Written Consent. Under Delaware
law, unless a corporation's certificate of incorporation
specifies otherwise, any action that could be taken by its
stockholders at an annual or special meeting may be taken without
a meeting and without notice to or a vote of other stockholders,
if a consent in writing is signed by holders of outstanding stock
having voting power that would be sufficient to take such action
at a meeting at which all outstanding shares were present and
voted. Our certificate of incorporation provides that
stockholder action may be taken only at an annual or special
meeting of stockholders. As a result, our stockholders may not
act upon any matter except at a duly called meeting.
Advance Notice of Stockholder Nominations and Stockholder
Business. Our bylaws permit stockholders to nominate a person
for election as a director or bring other matters before a
stockholders' meeting only if written notice of an intent to
nominate or bring business before a meeting is given a specified
time in advance of the meeting.
Supermajority Voting/Amendments to Certificate of
Incorporation. The affirmative vote of at least 80% of our
company's outstanding common stock is required to amend, alter,
change or repeal the provisions in our certificate of
incorporation providing for the following:
. the fair price requirements described above;
. the restriction on shareholder action by written
consent;
. limitation of liability and indemnification for
officers and directors;
. the supermajority vote required to amend our
certificate of incorporation;
. the amendment of our bylaws. Our bylaws also may be
amended by the vote of a majority of our directors
currently in office and a majority vote of our
directors who were members of our board prior to the
time an interested party, as described above, became an
interested party;
. the classification of our board of directors; and
. removal of directors and filing vacancies on our board
of directors as described below.
However, the 80% stockholder vote described above will not
be required if:
. our directors adopt resolutions amending, altering
or repealing the provisions in our certificate of
incorporation described above, and the vote of
directors adopting these resolutions includes:
. a majority of our board of directors; and
. a majority of our board of directors in
office prior to the time an interested party
became an interested party or directors
appointed by these directors; and
<PAGE> 15
. the amendment, alteration or repeal of the
provisions described above is approved by the vote
of holders of a majority of our outstanding common
stock.
Delaware Section 203. We are subject to Section 203 of the
Delaware General Corporation Law, which imposes a three-year
moratorium on the ability of Delaware corporations to engage in a
wide range of specified transactions with any interested
stockholder. An interested stockholder includes, among other
things, any person other than the corporation and its majority-
owned subsidiaries who owns 15% or more of any class or series of
stock entitled to vote generally in the election of directors.
However, the moratorium will not apply if, among other things,
the transaction is approved by:
. the corporation's board of directors prior to the date
the interested stockholder became an interested
stockholder; or
. the holders of two-thirds of the outstanding shares of
each class or series of stock entitled to vote
generally in the election of directors, not including
those shares owned by the interested stockholder.
Removal of Directors; Filling Vacancies on Board of
Directors; Size of the Board. Directors may be removed, with
cause, by the vote of 80% of the holders of all classes of stock
entitled to vote at an election of directors, voting together as
a single class. Directors may not be removed without cause by
stockholders. Vacancies in a directorship may be filled only by
the vote of a majority of the remaining directors and a majority
of all directors who were members of our board at the time an
interested party became an interested party. A newly created
directorship resulting from an increase in the number of
directors may only be filled by the board. Any director elected
to fill a vacancy on the board serves for the remainder of the
full term of the class of directors in which the new directorship
was created or in which the vacancy occurred. The number of
directors is fixed from time to time by the board.
Special Meetings of the Stockholders. Our bylaws provide
that special meetings of stockholders may be called only by
either (1) our Chairman, Co-Chairman or any Vice Chairman of our
board of directors, (2) our President and Chief Executive
Officer, or (3) by a vote of the majority of our board of
directors. Our stockholders do not have the power to call a
special meeting.
Limitation of Directors' Liability. Our certificate of
incorporation contains provisions eliminating the personal
liability of our directors to our company and our stockholders
for monetary damages for breaches of their fiduciary duties as
directors to the fullest extent permitted by Delaware law. Under
Delaware law and our certificate of incorporation, our directors
will not be liable for a breach of his or her duty except for
liability for:
. a breach of his or her duty of loyalty to our company
or our stockholders;
. acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
. dividends or stock repurchases or redemptions that are
unlawful under Delaware law; and
. any transaction from which he or she receives an
improper personal benefit.
These provisions pertain only to breaches of duty by
directors as directors and not in any other corporate capacity,
such as officers. In addition, these provisions limit liability
only for breaches of fiduciary duties under Delaware corporate
law and not for violations of other laws such as the federal
securities laws.
As a result of these provisions in our certificate of
incorporation, our stockholders may be unable to recover monetary
damages against directors for actions taken by them that
constitute negligence or gross negligence or that are in
violation of their fiduciary duties. However, our stockholders
may obtain injunctive or other equitable relief for these
actions. These provisions also reduce the likelihood of
derivative litigation against directors that might have
benefitted our company.
<PAGE> 16
We believe that these provisions are necessary to attract
and retain qualified individuals to serve as our directors. In
addition, these provisions will allow directors to perform their
duties in good faith without concern for monetary liability if a
court determines that their conduct was negligent or grossly
negligent.
Shareholder Rights Plan
Our board of directors adopted a shareholder rights plan in
November 1998. The rights plan was amended on December 30, 1998.
Under the rights plan, we distributed one preferred stock
purchase right to each holder of record of common stock at the
close of business on November 13, 1998. Once exercisable, each
right will entitle stockholders to buy one one-hundredth of a
share of Series A participating cumulative preferred stock, par
value $0.01 per share, at a purchase price of $80 per one one-
hundredth of a share of Series A participating cumulative
preferred stock. Prior to the time the rights become
exercisable, the rights will be transferred with our common
stock.
The rights do not become exercisable until a person or group
acquires 25% or more of our common stock or announces a tender
offer which would result in that person or group owning 25% or
more of our common stock. However, if the person or group that
acquires 25% or more of our common stock agrees to "standstill"
arrangements described in the rights plan, the rights will not
become exercisable until the person or group acquires 35% or more
of our common stock.
Once a person or group acquires 25% or more (or 35% or more
under the conditions described above) of our common stock, each
right will entitle its holder (other than the acquirer) to
purchase, for the $80 purchase price, the number of shares of
common stock having a market value of twice the purchase price.
The rights will also entitle holders to purchase shares of an
acquirer's common stock under specified circumstances. In
addition, the board may exchange rights (other than the
acquirer's) for shares of our common stock.
Prior to the time a person or group acquires 25% or more (or
35% or more under the conditions described above) of our common
stock, the rights may be redeemed by our board of directors at a
price of $0.01 per right. As long as the rights are redeemable,
our board of directors may amend the rights agreement in any
respect. The terms of the rights are set forth in a rights
agreement between us and ChaseMellon Shareholder Services,
L.L.C., as rights agent. The rights expire on November 13, 2008
(unless extended).
The rights may cause substantial dilution to a person that
attempts to acquire our company, unless the person demands as a
condition to the offer that the rights be redeemed or declared
invalid. The rights should not interfere with any merger or
other business combination approved by our board of directors
because our board may redeem the rights as described above. The
rights are intended to encourage any person desiring to acquire a
controlling interest in our company to do so through a
transaction negotiated with our board of directors rather than
through a hostile takeover attempt. The rights are intended to
assure that any acquisition of control of our company will be
subject to review by our board to take into account, among other
things, the interests of all of our stockholders.
DESCRIPTION OF PREFERRED STOCK
Each series of preferred stock will have specific terms that
we will describe in a prospectus supplement. The description may
not contain all information that is important to you. The
complete terms of the preferred stock will be contained in our
certificate of incorporation and the certificate of designations
relating to the applicable series of the preferred stock. These
documents have been or will be included or incorporated by
reference as exhibits to the registration statement of which this
prospectus is a part. You should read our certificate of
incorporation and the applicable certificate of designations.
Our certificate of incorporation authorizes us to issue,
without stockholder approval, up to 50,000,000 shares of
preferred stock, par value $0.01 per share. Our board of
directors may from time to time authorize us to issue one or more
series of preferred stock and may fix various terms for each
series, including the following:
. voting powers (if any);
<PAGE> 17
. designations;
. preferences;
. relative participating and optional or other rights;
. qualifications; and
. limitations and restrictions.
Thus, our board of directors could authorize us to issue
preferred stock with voting, conversion and other rights that
could adversely affect the voting power and other rights of
holders of our common stock or other series of preferred stock.
Also, the issuance of preferred stock could have the effect of
delaying, deferring or preventing a change in control of our
company.
The particular terms of any series of preferred stock
offered by this prospectus will be contained in an amendment to
our certificate of incorporation and described in a prospectus
supplement. The applicable prospectus supplement will describe
the following terms of any series of the preferred stock (to the
extent the terms are applicable):
. the specific designation, number of shares, rank and
purchase price;
. any liquidation preference per share;
. any redemption, payment or sinking fund provisions;
. any dividend rates (fixed or variable) and the dates on
which any dividends will be payable (or the method by
which the rates or dates will be determined);
. any voting rights;
. the commodity, currency, or units based on or relating
to commodities, currencies or composite currencies, in
which the preferred stock is denominated and/or in
which payments will or may be payable;
. the methods by which amounts payable in respect of the
preferred stock may be calculated and any commodities,
currencies, indices or other measures relevant to the
calculation;
. whether the preferred stock is convertible or
exchangeable and, if so,
(1) the securities into which the preferred stock is
convertible or exchangeable,
(2) the terms and conditions upon which conversions or
exchanges will be effected, including the initial
conversion or exchange prices or rates,
(3) the conversion or exchange period, and
(4) any other related provision;
. the place or places where dividends and other payments
on the preferred stock will be payable; and
. any additional voting, dividend, liquidation,
redemption, sinking fund or other rights, preferences,
privileges, limitations and restrictions.
<PAGE> 18
As described under "Description of Depositary Shares" below,
we may, at our option, elect to offer depositary shares evidenced
by depositary receipts. Each depositary receipt will represent
an interest in a share of a particular series of preferred stock
that we will issue and deposit with a depositary. The interest
represented by the depositary receipt will be described in the
applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
We summarize below some of the provisions that will apply to
the depositary shares unless the applicable prospectus supplement
provides otherwise. The summary may not contain all information
that is important to you. The complete terms of the depositary
shares will be contained in the depositary receipts and the
deposit agreement relating to the applicable series of preferred
stock. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the depositary receipts and the depositary agreement. You should
also read the prospectus supplement, which will contain
additional information and which may update or change some of the
information below.
General
We may, at our option, elect to have shares of preferred
stock represented by depositary shares. The shares of any series
of preferred stock underlying the depositary shares will be
deposited under a separate deposit agreement that we will enter
into with a bank or trust company of our choosing. The
prospectus supplement relating to a series of depositary shares
will give the name and address of the depositary. Subject to the
terms of the deposit agreement, each owner of a depositary share
will be entitled to all the rights and preferences of the
preferred stock underlying the depositary share in proportion to
the applicable interest in the preferred stock underlying the
depositary share.
The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Each
depositary share will represent the applicable interest in a
number of shares of a particular series of the preferred stock
described in the applicable prospectus supplement.
Unless otherwise provided in the applicable prospectus
supplement, upon surrender of depositary shares at the office of
the depositary and upon payment of the charges provided in the
deposit agreement, a holder of depositary shares will be entitled
to the number of whole shares of preferred stock evidenced by the
surrendered depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other
cash distributions received in respect of the preferred stock to
the record holders of depositary shares representing the
preferred stock in proportion to the number of the depositary
shares owned by the holders on the relevant record date.
In the event of a distribution other than in cash, the
depositary will distribute the property received by it to the
record holders of depositary shares entitled to the property.
Alternatively, the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the
record holders of depositary shares.
The deposit agreement will also contain provisions relating
to the manner in which any subscription or similar rights we
offer to holders of preferred stock will be made available to
holders of depositary shares.
Conversion and Exchange
If any preferred stock underlying depositary shares is
convertible or exchangeable, each record holder of depositary
shares will have the right or obligation to convert or exchange
the depositary shares in the manner provided in the deposit
agreement and described in the applicable prospectus supplement.
<PAGE> 19
Redemption
If the preferred stock underlying depositary shares is
subject to redemption, the depositary shares will be redeemed
from the redemption proceeds received by the depositary. The
redemption price per depositary share will be equal to the
aggregate redemption price payable with respect to the number of
shares of preferred stock underlying the depositary shares.
Whenever we redeem preferred stock from the depositary, the
depositary will redeem as of the same redemption date a
proportionate number of depositary shares representing the shares
of preferred stock that we redeemed. If less than all the
depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata as we may determine.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be deemed to be outstanding
and all rights of the holders of the depositary shares will
cease, except the right to receive the redemption price. Any
funds we deposit with the depositary for any depositary shares
which the holders fail to redeem will be returned to us after two
years from the date the funds are deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of
any meeting at which the holders of any shares of preferred stock
underlying the depositary shares are entitled to vote, the
depositary will mail the information contained in the notice to
the record holders of the depositary shares relating to the
preferred stock. Each record holder of the depositary shares on
the record date, which will be the same date as the record date
for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to
the number of shares of preferred stock underlying the holder's
depositary shares. The depositary will endeavor, insofar as
practicable, to vote the number of shares of preferred stock
underlying the depositary shares in accordance with these
instructions, and we will agree to take all action that the
depositary deems necessary to enable the depositary to do so.
Amendment
The depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may at any time be amended
by agreement between us and the depositary. However, any
amendment that materially and adversely alters the rights of the
existing holders of depositary shares will not be effective
unless the amendment has been approved by the record holders of
at least a majority of the depositary shares then outstanding.
Charges of Depositary
We will pay all transfer and other taxes and governmental
charges that arise solely from the existence of the depositary
arrangements. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock and
any exchange or redemption of the preferred stock. Holders of
depositary shares will pay all other transfer and other taxes and
governmental charges, and, in addition, any other charges that
are expressly provided in the deposit agreement to be for their
accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us
notice of its election to do so, and we may at any time remove
the depositary. Any resignation or removal will take effect upon
the appointment of a successor depositary and its acceptance of
the appointment. We will appoint the successor depositary within
60 days after delivery of the notice of resignation or removal.
Termination of Deposit Agreement
The depositary may terminate, or we may direct the
depositary to terminate, the deposit agreement if 45 days has
expired after the depositary has delivered to us written notice
of its election to resign and we have not appointed a successor
depositary. Upon termination of the deposit agreement, the
depositary will discontinue the transfer of depositary receipts,
will suspend the distribution of dividends, and will not give any
further notices (other than notice of the termination) or perform
any further acts under the deposit agreement. However, the
depositary
<PAGE> 20
will continue to deliver preferred stock certificates,
together with dividends and distributions and the net proceeds of
any sales of property, in exchange for depositary receipts
surrendered. Upon our request, the depositary will deliver to us
all books, records, certificates evidencing preferred stock,
depositary receipts and other documents relating to the deposit
agreement.
Miscellaneous
We, or at our option the depositary, will forward to the
holders of depositary shares all reports and communications that
we are required to furnish to the holders of preferred stock.
Neither we nor the depositary will be liable if the
depositary is prevented or delayed by law or any circumstance
beyond its control in performing its obligations under the
deposit agreement. Our obligations and those of the depositary
under the deposit agreement will be limited to performance in
good faith of our respective duties under the deposit agreement.
Neither we nor the depositary will be obligated to prosecute or
defend any legal proceeding regarding any depositary share or
preferred stock unless satisfactory indemnity has been furnished.
We and the depositary may rely upon written advice of counsel or
accountants. We and the depositary may also rely upon
information provided to us by persons presenting preferred stock
for deposit, holders of depositary shares or other persons we or
the depositary believe to be competent. We and the depositary
may also rely upon documents we believe to be genuine.
DESCRIPTION OF DEBT SECURITIES
General
We may issue debt securities from time to time in one or
more series. Debt securities will be our unsecured obligations
and will be designated as:
. senior securities;
. senior subordinated securities; or
. subordinated securities.
Senior securities, senior subordinated securities and
subordinated securities will each be issued under separate
indentures we enter into with a trustee.
We have summarized below some of the provisions that will
apply to the debt securities unless the applicable prospectus
supplement provides otherwise. The summary may not contain all
information that is important to you. The complete terms of the
debt securities will be contained in the applicable indenture and
note. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the indenture and the note. You should also read the prospectus
supplement, which will contain additional information and which
may update or change some of the information below.
A principal difference between the indentures are provisions
relating to subordination. The "subordination" of a series of
debt securities is the degree to which holders of the debt
securities are subordinated in right of payment to our other
obligations. The senior securities will rank equally with all of
our other senior unsecured debt. Senior subordinated securities
and subordinated securities will be subordinated in right of
payment to the prior payment in full of the senior securities and
our other senior indebtedness. Subordinated securities will also
be subordinated in right of payment to the prior payment in full
of any outstanding senior subordinated securities. The
subordination provisions of the senior subordinated securities
and subordinated securities are discussed in greater detail below
under "" Subordination of Senior Subordinated Securities and
Subordinated Securities."
Unless we state otherwise in the related prospectus
supplement, the indentures will not contain provisions that (1)
limit the total amount of debt that we or any of our subsidiaries
may issue or incur, (2) limit our ability or
<PAGE> 21
the ability of any
of our subsidiaries to incur secured indebtedness, or (3) limit
our ability or the ability of any of our subsidiaries to pay
dividends or make other distributions or payments. Also, unless
we state otherwise in the related prospectus supplement, the
indentures will not contain provisions that would afford you, as
a holder of the debt securities, protection if we were to undergo
a change in control or enter into a highly leveraged transaction,
recapitalization or similar transaction, any of which could
adversely affect your rights as a holder of the debt securities.
We may issue debt securities under each indenture from time
to time in separate series up to the aggregate amount specified
in the indenture.
We will describe the specific terms of the series of debt
securities being offered in the related prospectus supplement.
These terms will include some or all of the following:
. the title of the debt securities and whether the
debt securities are senior securities, senior
subordinated securities or subordinated
securities;
. any limit on the aggregate principal amount of the
debt securities;
. whether the debt securities will be issued as
registered debt securities, bearer debt securities
or both, any limitation on issuance of bearer debt
securities and provisions regarding the transfer
or exchange of bearer debt securities;
. whether any of the debt securities are to be
issuable as a global security and whether global
securities are to be issued in temporary global
form or permanent global form;
. the person to whom any interest on the debt
security will be payable if other than the person
in whose name the debt security is registered on
the record date;
. the date or dates on which the debt securities
will mature;
. the rate or rates of interest, if any, that the
debt securities will bear, or the method of
calculation of the interest rate or rates;
. the date or dates from which any interest on the
debt securities will accrue, the dates on which
any interest will be payable and the record date
for any interest payable on any interest payment
date;
. the place or places where the principal of,
interest, premium and additional amounts (if any)
on the debt securities will be payable;
. whether we will have the right or obligation to
redeem or repurchase any of the debt securities,
and the terms applicable to any optional or
mandatory redemption or repurchase;
. the denominations in which the debt securities
will be issuable;
. any index or formula used to determine the amount
of payments of principal of and any premium,
additional amounts (if any) and interest on the
debt securities;
. the currency or currencies or currency units or
composite currencies in which the principal of and
any premium, additional amounts (if any) and
interest on the debt securities will be made (if
other than U.S. dollars);
. if the principal of or any premium, additional
amounts (if any) or interest on the debt
securities may be paid in a different currency or
currencies or currency units or composite
currencies at our option or the option of the
holder, the currency or currencies
<PAGE> 22
or currency
units or composite currencies in which these
payments may be made and the terms and conditions
applicable to the payments;
. if other than the principal amount, the portion of
the principal amount of the debt securities that
will be payable if there is an acceleration of the
maturity of the debt securities;
. if the debt securities are convertible into other
securities, the conversion price, the period
during which the debt securities may be converted
and other terms of conversion;
. any sinking fund provisions applicable to the debt
securities;
. the extent to which the provisions described under
" Certain of Our Covenants" below will apply to
the debt securities, and whether the indenture
includes any additional restrictive covenants for
the benefit of the holders of the debt securities;
. the extent to which the provisions described under
" Events of Default with Respect to the Debt
Securities" below will apply to the debt
securities, and the extent to which the provisions
have been supplemented or modified;
. the extent to which the provisions described under
" Defeasance" below will apply to the debt
securities; and
. any other terms of the debt securities not
inconsistent with the provisions of the respective
indentures.
Debt securities may bear interest at a fixed rate or a
floating rate, or may not bear interest. Debt securities bearing
no interest or interest at a rate that at the time of issuance is
below the prevailing market rate may be sold at a discount (which
may be significant) below their stated principal amount. We will
describe in the related prospectus supplement special United
States federal income tax considerations applicable to any
discounted debt securities or to debt securities issued at par
that are treated as having been issued at a discount for United
States federal income tax purposes.
If the purchase price of any of the debt securities is
denominated in a foreign currency or currencies or currency units
or composite currencies or if payments may be made in a foreign
currency or currencies or currency units or composite currencies,
we will set forth the general tax considerations with respect to
these debt securities in the related prospectus supplement.
Subordination of Senior Subordinated Securities and Subordinated
Securities
The indebtedness evidenced by the senior subordinated
securities and the subordinated securities will be subordinated
and junior in right of payment to the extent described in the
related indenture to the prior payment in full of amounts then
due on all of our senior indebtedness (as defined below),
including the senior securities. The subordinated securities
will also be subordinated and junior in right of payment to the
prior payment in full of all amounts then due on any outstanding
senior subordinated securities. Thus, if you hold senior
subordinated securities or subordinated securities:
. you will not be entitled to receive any payments
of principal (or premium or additional amounts, if
any) or interest on your debt securities until all
amounts due have been paid on our senior
indebtedness
. in the event of any voluntary or involuntary
insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total
or partial liquidation, reorganization or
other similar proceeding;
<PAGE> 23
. if there is any default with respect to the
principal and interest of any of our senior
indebtedness or any other default with
respect to our senior indebtedness that would
permit the holders to accelerate the maturity
of our senior indebtedness and the default
has not been cured or waived; or
. in the event that the principal of an accrued
interest on senior subordinated or
subordinated securities are accelerated
following the declaration of an event of
default and the declaration has not been
rescinded or annulled; and
. you will not be entitled to receive assets or
money in respect of payments of principal (or
premium or additional amounts, if any) or interest
due on your debt securities in connection with a
voluntary or involuntary receivership,
dissolution, winding-up, liquidation,
reorganization, bankruptcy, insolvency or similar
proceeding until our senior indebtedness has been
paid in full.
You may, as a result, recover less, ratably, than our other
creditors, including holders of senior indebtedness.
With respect to any series of senior subordinated securities
or subordinated securities, "senior indebtedness" means the
principal of (and premium or additional amounts, if any) and
interest on all of our indebtedness (as defined below), whether
outstanding on the date of the related indenture or created,
incurred or assumed after the date of the related indenture,
other than
. the indebtedness represented by the senior
subordinated securities or subordinated securities
and
. any particular indebtedness that expressly states
in its governing terms (or in our assumption or
guarantee) that it is not senior in right of
payment to the senior subordinated securities or
the subordinated securities, as the case may be,
or that the indebtedness ranks equal to or junior
to the senior subordinated securities or the
subordinated securities.
Our "indebtedness" includes all of our obligations
. for borrowed money;
. that are evidenced by a bond, debenture, note or
similar instrument;
. with respect to letters of credit or similar
instruments;
. to pay the deferred purchase price of any property
or services (other than trade payables);
. as lessee under leases we are required to
capitalize on our balance sheet under generally
accepted accounting principles;
. any indebtedness of others secured by a lien on
our assets, whether or not we have assumed the
indebtedness; and
. any indebtedness of others that we have
guaranteed.
Each series of senior subordinated securities will be
"senior indebtedness" with respect to each series of subordinate
securities. If this prospectus is being delivered in connection
with a series of senior subordinated securities or subordinated
securities, we will describe in the accompanying prospectus
supplement or the information incorporated by reference the
approximate amount of senior indebtedness outstanding as of the
end of our most recent fiscal quarter.
<PAGE> 24
Convertible Debt Securities
We may issue debt securities from time to time that are
convertible into our common stock, preferred stock or other
securities. If you hold convertible debt securities, you will be
permitted at certain times specified in the related prospectus
supplement to convert your debt securities into the other
securities for a specified price. We will describe the
conversion price (or the method for determining the conversion
price) and the other terms applicable to conversion in the
related prospectus supplement.
Debt Securities with Payment Terms Tied to Commodities,
Currencies or Indices
We may issue debt securities with payment terms that are
calculated by reference to the value, rate or price of one or
more commodities, currencies, currency units, composite
currencies or indices. If you hold these debt securities, you
may receive payments of principal or any premium, additional
amounts (if any) or interest on any payment date that are greater
than or less than the amounts that would otherwise be payable to
you, depending upon the fluctuations in the value, rate or price
of the applicable commodity, currency, currency unit, composite
currency or index. We will include in the applicable prospectus
supplement information as to the methods for determining the
amount of principal, premium, additional amounts (if any) or
interest payable on any date, the referenced commodities,
currencies, currency units or composite currencies or indices and
additional tax considerations.
Form, Exchange, Registration and Transfer of Debt Securities
Debt securities are issuable in definitive form as
registered debt securities, as bearer debt securities or both.
Unless we state otherwise in the related prospectus supplement,
bearer debt securities will have interest coupons attached. Debt
securities are also issuable in temporary or permanent global
form.
Registered debt securities of any series will be
exchangeable for other registered debt securities of the same
series and of a like aggregate principal amount and tenor of
different authorized denominations.
If you hold bearer debt securities of any series, at your
option and subject to the terms of the indenture, you may
exchange them (with all unmatured coupons, except as provided
below, and all matured coupons in default) for registered debt
securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. Bearer debt
securities that you surrender in exchange for registered debt
securities between a record date and the relevant date for
payment of interest must be surrendered without the coupon
relating to that date for payment of interest. Interest accrued
as of that date will not be payable in respect of the registered
debt security issued in exchange for the bearer debt security,
but will be payable only to the holder of the coupon when due in
accordance with the terms of the indenture.
You may only present bearer debt securities for exchange at
one of our offices or agencies maintained for that purpose
located outside the United States and referred to in the
applicable prospectus supplement. You may present registered
debt securities for registration of transfer at any office or
agency maintained for that purpose. If the debt securities are
registered debt securities, you must execute the form of transfer
on the debt security. We will list the offices or agencies
maintained for exchange and registration of transfer in the
related prospectus supplement. You will not be required to pay
any service charge in connection with an exchange or transfer,
but you may be required to pay taxes and other governmental
charges. We or our agent will not effect an exchange or transfer
unless we are satisfied, or our agent is satisfied, with the
documents of title and identity of the person making the request.
In the event of any partial redemption of debt securities,
we will not be required to
. issue, register the transfer of or exchange debt
securities of any series during the period
beginning at the opening of business 15 days prior
to the selection of debt securities of that series
for redemption and ending on the close of business
on
(1) if debt securities of the series are issued
only as registered debt securities, the day
the relevant notice of redemption is mailed
and
<PAGE> 25
(2) if debt securities of the series are issued
as bearer debt securities, the day of the
first publication of the relevant notice of
redemption, except that, if debt securities
of the series are also issued as registered
debt securities and there is no publication,
the day the relevant notice of redemption is
mailed;
. register the transfer of or exchange any
registered debt security, or portion of any
registered debt security, called for redemption,
except the unredeemed portion of any registered
debt security being redeemed in part; or
. exchange any bearer debt security called for
redemption, except to exchange that bearer debt
security for a registered debt security of that
series and like tenor which is simultaneously
surrendered for redemption.
Payment and Paying Agents
Unless we state otherwise in the applicable prospectus
supplement, payment of principal of (and any premium), additional
amounts (if any) and interest on bearer debt securities will be
payable, subject to any applicable laws and regulations, in the
designated currency, at the offices of the paying agents outside
the United States as we may designate from time to time by check
or by transfer to an account you maintain with a bank located
outside the United States. Unless we state otherwise in the
applicable prospectus supplement, to receive an interest payment
with respect to a bearer debt security on a particular interest
payment date you will be required to surrender the related coupon
to the paying agent. No payment with respect to any bearer debt
security will be made at any of our offices or agencies in the
United States or by check mailed to any address in the United
States, by transfer to any account maintained with a bank located
in the United States, nor shall any payments be made in respect
of bearer debt securities upon presentation to us or our paying
agents within the United States. Notwithstanding the foregoing,
payments of principal of (and any premium) and interest on bearer
debt securities denominated and payable in U.S. dollars will be
made at the office of our paying agent in the United States, if
(but only if) payment of the full amount thereof in U.S. dollars
at all offices or agencies outside the United States is illegal
or effectively precluded by exchange controls or other similar
restrictions.
Unless we state otherwise in the applicable prospectus
supplement, payment of principal of (and any premium), additional
amounts (if any) and interest on registered debt securities will
be made in the designated currency at the office of our paying
agent or paying agents as we may designate from time to time.
However, we may make payment, at our option, by check mailed to
the address of the person entitled to these payments as the
person's address appears on the records of the security
registrar. Unless we state otherwise in the applicable
prospectus supplement, payment of any installment of interest on
registered debt securities will be made to the person in whose
name the registered debt security is registered at the close of
business on the record date for the interest.
Unless we state otherwise in the applicable prospectus
supplement, the corporate trust office of the trustee will be
designated as a paying agent for the trustee for payments with
respect to debt securities that are issuable solely as registered
debt securities. We will maintain a paying agent outside the
United States for payments with respect to debt securities that
are issued solely as bearer debt securities, or as both
registered debt securities and bearer debt securities. Any
paying agents outside the United States and any other paying
agents in the United States we initially designate for the debt
securities will be named in the related prospectus supplement.
We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the
office through which any paying agent acts. However, if debt
securities of a series are issued solely as registered debt
securities, we will be required to maintain a paying agent in
each place of payment for the series. If debt securities of a
series are issued as bearer debt securities, we will be required
to maintain
. a paying agent in the United States for payments
with respect to any registered debt securities of
the series (and for payments with respect to
bearer debt securities of the series in the
circumstances where payment outside the United
States is illegal or effectively precluded, but
not otherwise); and
<PAGE> 26
. a paying agent in a place of payment located
outside the United States where debt securities of
the series and any related coupons may be
presented and surrendered for payment.
All amounts we pay to a paying agent for the payment of
principal of and any premium, additional amounts (if any) or
interest on any debt security which you hold or with respect to
which you hold any coupon that remain unclaimed at the end of two
years after the principal, premium or interest shall have become
due and payable will (subject to applicable escheat laws) be
repaid to us, and you will thereafter have to look only to us for
payment.
Temporary Global Securities
If we so state in the applicable prospectus supplement, all
or any portion of the debt securities of a series that are
issuable as bearer debt securities will initially be represented
by one or more temporary global debt securities, without interest
coupons, which will be deposited with a common depository in
London for the Euroclear System ("Euroclear") and CEDEL Bank S.A.
("CEDEL") for credit to the designated accounts.
On and after the date determined as provided in the
temporary global debt security, the temporary global debt
security will be exchangeable for definitive bearer debt
securities, definitive registered debt securities or all or a
portion of a permanent global security, or any combination, as
specified in the applicable prospectus supplement. No bearer
debt security delivered in exchange for a portion of a temporary
global debt security will be mailed or otherwise delivered to any
location in the United States in connection with the exchange.
Unless we state otherwise in the applicable prospectus
supplement, interest in respect of any portion of a temporary
global debt security payable in respect of a payment date
occurring prior to the issuance of definitive debt securities or
a permanent global subordinated security will be paid to each of
Euroclear and CEDEL with respect to the portion of the temporary
global debt security held for its account.
Permanent Global Securities
If any debt securities of a series are issuable in permanent
global form, we will describe in the applicable prospectus
supplement the circumstances, if any, under which beneficial
owners of interests in the permanent global debt securities may
exchange the interests for debt securities of the series and of
like tenor and principal amount in any authorized form and
denomination. No bearer debt security delivered in exchange for
a portion of a permanent global debt security will be mailed or
otherwise delivered to any location in the United States in
connection with the exchange. Notwithstanding the foregoing,
unless we state otherwise in an applicable prospectus supplement,
if you hold an interest in a permanent global bearer debt
security, you may exchange your interest in whole (but not in
part) at our expense for definitive bearer debt securities.
Book-Entry Debt Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary or its nominee
identified in the applicable prospectus supplement. In this
case, one or more global securities will be issued in a
denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding debt securities of
the series to be represented by the global security or
securities. Unless we state otherwise in the applicable
prospectus supplement, unless and until it is exchanged in whole
or in part for debt securities in registered form, a global
security may not be registered for transfer or exchange except as
a whole by the depositary to a nominee of that depositary or to a
successor depositary.
We will describe the specific terms of the depositary
arrangement with respect to any portion of a series of debt
securities to be represented by a global security in the
applicable prospectus supplement. We expect that the following
provisions will generally apply.
Unless we state otherwise in the applicable prospectus
supplement, debt securities which are to be represented by a
global security to be deposited with or on behalf of a depositary
will be represented by a global security registered in the name
of that depositary or its nominee. Upon the issuance of the
global security, and the
<PAGE> 27
deposit of the global security with or
on behalf of the depositary, the depositary will credit, on its
book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by the
global security to the accounts of institutions that have
accounts with the depositary or its nominee ("participants").
The accounts to be credited will be designated by the
underwriters or agents of the debt securities or by us, if we
offer and sell the debt securities directly. Ownership of
beneficial interests in the global security will be limited to
participants or persons that hold interests through participants.
Ownership of beneficial interests by participants in the global
security will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by the
depositary or its nominee. If you hold a beneficial interest in
a global security through a participant, your ownership interest
will be shown on, and the transfer of your ownership interest
will be effected only through, records maintained by that
participant.
The laws of some jurisdictions require that some purchasers
of securities take physical delivery of the securities in
certificated form. If you own a beneficial interest in a global
security, these laws may impair your ability to transfer your
beneficial interest.
So long as the depositary for a global security, or its
nominee, is the registered owner of the global security, the
depositary or nominee will be considered the sole owner or holder
of the debt securities represented by the global security for all
purposes under the related indenture. Unless we state otherwise
in the applicable prospectus supplement, if you own a beneficial
interest in a global security
. you will not be entitled to have debt securities
of the series represented by the global security
registered in your name;
. you will not receive or be entitled to receive
physical delivery of debt securities of the series
in certificated form; and
. you will not be considered the holder of the debt
securities for any purposes under the applicable
indenture.
Accordingly, if you own a beneficial interest in a global
security, you will have to rely on the procedures of the
depositary and, if you are not a participant, on the procedures
of the participant through which you own your interest, to
exercise any of your rights as a holder. We understand that
under existing industry practices, if we request any action of
holders or if you desire to give any notice or take any action
you are entitled to give or take under an indenture, the
depositary would authorize the participant through which you hold
your interest to give the notice or take the action, and the
participant would in turn authorize you to give the notice or
take the action or would otherwise act upon your instructions.
However, we have no control over the practices of the depositary
or the participants, and there can be no assurance that these
practices will not be changed.
Principal of and any premium, additional amounts and
interest on a global security will be payable in the manner we
describe in the applicable prospectus supplement.
Limitations on the Issuance of Bearer Debt Securities
In compliance with United States Federal tax laws and
regulations, we will not offer or sell bearer debt securities
(including securities in permanent global form that are either
bearer debt securities or exchangeable for bearer debt
securities) during the "restricted period" specified by the
United States Treasury Regulations within the United States or to
United States persons (as defined below). The "restricted
period" is, generally, the first 40 days after the closing date,
and with respect to unsold allotments, until sold. We may,
however, offer or sell bearer debt securities to an office
located outside the United States of a United States financial
institution purchasing for its own account, for resale or for the
accounts of customers. We will require the financial institution
to provide a certificate stating that it will comply with laws
and regulations relating to the bearer debt securities.
Moreover, the bearer debt securities will not be delivered within
the United States during the restricted period in connection with
any sale.
We will require any underwriters and dealers participating
in an offering of bearer debt securities to agree not to offer or
sell bearer debt securities within the United States or to United
States persons (other than the persons described above) during
the restricted period, or to deliver bearer debt securities
within the United States during the
<PAGE> 28
restricted period in
connection with any sale. We will also require these
underwriters and dealers to certify that they have in effect
procedures reasonably designed to ensure that their employees and
agents who are directly engaged in selling the bearer debt
securities are aware of these restrictions.
We will not deliver a bearer debt security (other than a
temporary global bearer debt security) in connection with its
original issuance or pay interest on any bearer debt security
until we have received the written certification provided for in
the indenture. Each bearer debt security, other than a temporary
global bearer debt security, will bear a legend similar to the
following: "Any United States person who holds this obligation
will be subject to limitations under the United States Federal
income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the Internal Revenue Code."
As used above, "United States person" means any citizen or
resident of the United States, any corporation, partnership or
other entity created or organized in or under the laws of the
United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of
its source, and "United States" means the United States of
America (including the states and the District of Columbia) and
its possessions.
Certain of Our Covenants
Unless we state otherwise in the applicable prospectus
supplement, we will agree under the indentures not to consolidate
with or merge into any individual, corporation, partnership or
other entity (each, a "person"), or sell, lease, convey, transfer
or otherwise dispose of all or substantially all of our assets to
any person, or permit any person to consolidate or merge into us
or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to us unless:
. the person formed by or surviving the
consolidation or merger (if not us), or to which
the sale, lease, conveyance, transfer or other
disposition is to be made is a corporation,
limited liability company or partnership organized
and existing under the laws of the United States
or any state or the District of Columbia, and the
person assumes by supplemental indenture in a form
satisfactory to the trustee all of our obligations
under the indenture;
. immediately after giving effect to the transaction
and treating any debt that becomes an obligation
of ours or of any of our subsidiaries as a result
as having been incurred by us or our subsidiary at
the time of the transaction, no default or event
of default shall have occurred and be continuing;
and
. we have delivered to the trustee an officer's
certificate and opinion of counsel, each stating
that the merger, consolidation, sale or conveyance
and the supplemental indenture, if any, comply
with the indenture.
Events of Default with Respect to the Debt Securities
Unless we state otherwise in the applicable prospectus
supplement, an "event of default" is defined under each indenture
with respect to debt securities of any series issued under such
indenture as being:
. our default for 30 days in payment of any interest
or additional amounts, if any, on the debt
securities of the series or any related coupon;
. our default in payment of any principal on the
debt securities of the series upon maturity or
otherwise; provided that, if the default is a
result of the voluntary redemption by the holders
of the debt securities, the amount of the default
must be in excess of the dollar amount listed in
the indenture (or the equivalent in any other
currency);
. our default, for 60 days after delivery of written
notice, in the observance or performance of any
other agreement in the debt securities of the
series or the indenture, other than an
<PAGE> 29
agreement
included in the indenture that is not applicable
to the debt securities of that series;
. bankruptcy, insolvency or reorganization events
relating to us; or
. our failure to pay at maturity, or other default
by us which results in acceleration of, debt in an
amount in excess of the dollar amount listed in
the indenture without the debt having been
discharged or the acceleration having been cured,
waived, rescinded or annulled for 30 days after
written notice. "Debt" for this purpose means
our obligation, or obligations we have guaranteed
or assumed, for borrowed money or evidenced by
bonds, debentures, notes or other similar
instruments, other than non-recourse obligations
or the debt securities of the series.
The consequences of an event of default, and the remedies
available under the indenture, will vary depending upon the type
of event of default that has occurred.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will provide that if an event of
default has occurred and is continuing and is due to
. our failure to pay principal, premium or
additional amounts, if any, or interest on, any
series of debt securities under the indenture,
. our default in the performance of any agreements
applicable to outstanding debt securities of one
or more series issued under the indenture or
. our failure to pay at maturity, or other default
which results in the acceleration of, any debt in
an amount in excess of the dollar amount listed in
the indenture,
then either the trustee or the holders of not less than 25% in
principal amount of the outstanding debt securities of each
affected series (each series treated as a separate class) may
declare the principal (or the portion of the principal that is
specified in the terms of the affected debt securities) of all
the affected debt securities and interest accrued to be due and
payable immediately.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will provide that if an event of
default has occurred and is continuing and is due to a
bankruptcy, insolvency or reorganization event relating to us,
then the principal (or such portion of the principal as is
specified in the terms of the debt securities) of and interest
accrued on all debt securities then outstanding will become due
and payable automatically, without further action by the trustee
or the holders.
Under conditions specified in the indenture, the holders of
a majority of the principal amount of the debt securities of each
affected series (each series treated as a separate class) may
annul or waive the declarations and past defaults described
above. These holders may not, however, waive a continuing
default in payment of principal of (or premium, if any) or
interest on, or in respect of the conversion of, debt securities.
Each indenture provides that the trustee, subject to the
duty of the trustee during a default to act with the required
standard of care, has no obligation to exercise any right or
power granted to it under the indenture at the request of holders
of debt securities unless the holders have indemnified the
trustee. Subject to the provisions in each indenture for the
indemnification of the trustee and other limitations in the
indenture, the holders of a majority in principal amount of the
outstanding debt securities of each affected series issued under
the indenture (each series treated as a separate 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 the trustee with respect to the series.
If you hold debt securities of any series, you will not be
permitted under the terms of the indenture to institute any
action against us in connection with any default (except actions
for payment of overdue principal, premium and additional amounts,
(if any) or interest or to enforce conversion rights (if any))
unless
<PAGE> 30
. you have given the trustee written notice of the
default and its continuance;
. holders of not less than 25% in principal amount
of the debt securities of each affected series
issued under the indenture (each series treated as
a separate class) have made a written request upon
the trustee to institute the action and have
offered the trustee reasonable indemnity;
. the trustee has not instituted the action within
60 days of the request; and
. the trustee has not received directions
inconsistent with the written request by the
holders of a majority in principal amount of the
outstanding debt securities of all affected series
issued under the indenture (each series treated as
a separate class).
Each indenture contains a covenant requiring us to file
annually with the trustee a certificate of no default or a
certificate specifying any default that exists.
Defeasance Provisions Applicable to the Debt Securities
The following provisions relating to defeasance may be
modified in connection with the issuance of any series of debt
securities. We will describe any modification in the related
prospectus supplement.
"Legal" defeasance. Each indenture provides that we may
defease and be discharged from any and all of our non-
administrative obligations with respect to the debt securities of
any series which have not already been delivered to the trustee
for cancellation and which have either become due and payable or
are by their terms due and payable within one year (or scheduled
for redemption within one year). We may effect the defeasance
by irrevocably depositing with the trustee money or, in the case
of debt securities payable only in U.S. dollars, U.S. government
securities, which through the payment of principal and interest
in accordance with their terms will provide money in an amount we
certify to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium and additional amounts, if any) and
interest on the debt securities.
In addition, we may elect to defease and be discharged from
any and all of our non-administrative obligations with respect to
the debt securities of a series upon our:
. irrevocable deposit with the trustee (or other
qualifying trustee), in trust, money or U.S.
government securities in the amounts described in
the immediately preceding paragraph; and
. delivery to the trustee of an opinion of counsel
to the effect that due to an Internal Revenue
Service ruling or change in federal income tax
law, holders of the debt securities of the series
will not recognize income, gain or loss for
federal income tax purposes, other than with
respect to interest earned on the amounts
defeased, as a result
<PAGE> 31
of the defeasance and will
be subject to federal income tax as if the
defeasance had not occurred.
"Covenant" defeasance. We may elect to be released from the
restrictions described under "Certain of our Covenants" above
or, to the extent specified in connection with the issuance of a
series of debt securities, other covenants applicable to the
series of debt securities upon our:
. irrevocable deposit with the trustee (or other
qualifying trustee), in trust, money or U.S.
government securities in the amounts described in
the paragraph titled "Legal defeasance"; and
. delivery to the trustee of an opinion of counsel
to the effect that holders of the debt securities
of the series will not recognize income, gain or
loss for federal income tax purposes, other than
with respect to interest earned on the amounts
defeased, as a result of the defeasance and will
be subject to federal income tax as if the
defeasance had not occurred.
If we exercise the "covenant" defeasance option described
above and the debt securities of a series are declared due and
payable because of the occurrence of an event of default other
than an event of default related to the covenants from which we
have been released, the amount of money and U.S. government
securities on deposit with the trustee will be sufficient to pay
amounts due on the related series at the time of their stated
maturity, but may not be sufficient to pay amounts due on the
debt securities of the series if the debt securities are
accelerated as a result of the event of default.
Modification of the Indenture
Unless we state otherwise in the applicable prospectus
supplement, each indenture provides that we and the trustee may
enter into supplemental indentures without the consent of the
holders of debt securities to
. secure the debt securities;
. evidence the assumption of our obligations by a
successor entity;
. add covenants or events of default for the
protection of the holders of any debt securities;
. establish the form or terms of debt securities of
any series;
. provide for uncertificated securities in addition
to certificated securities (so long as the
uncertificated securities are in registered form
for tax purposes)
. evidence the acceptance of appointment by a
successor trustee;
. cure any ambiguity or correct any inconsistency in
the indenture or amend the indenture in any other
manner which we may deem necessary or desirable,
if such action will not adversely affect the
interests of the holders of debt securities; or
. make any change to comply with any requirement of
the Securities and Exchange Commission relating to
the qualification of the indenture under the Trust
Indenture Act of 1939.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will also contain provisions
permitting us and the trustee to modify the provisions of the
indenture or modify in any manner the rights of the holders of
the debt securities of each such series if we first obtain the
consent of the holders of not less than a majority in principal
amount of debt securities of all series issued under the
indenture then outstanding and affected (voting as a single
class). However, we must get the consent of the holder of each
debt security affected to
. extend the final maturity of any debt security;
. reduce the principal amount of any debt security;
. reduce or alter the method of computation of any
amount payable in respect of interest on any debt
security;
. extend the time for payment of interest on any
debt security;
. reduce or alter the method of computation of any
amount payable on redemption of any debt security
. extend the time for any redemption payment;
<PAGE> 32
. change the currency or currencies or currency
units, or composite currencies in which the
principal of, premium or additional amounts, if
any, or interest on any debt security is payable;
. reduce the amount payable upon acceleration of any
debt security;
. alter specified provisions of the indenture
relating to debt securities that are not
denominated in U.S. dollars;
. impair the right to institute suit for the
enforcement of any conversion or any payment on
any debt security when due or materially and
adversely affect any conversion rights;
. reduce the percentage in principal amount of debt
securities of a series required to make other
modifications to the indenture.
The subordinated indenture may not be amended to alter the
subordination of any outstanding subordinated securities without
the consent of each holder of senior indebtedness then
outstanding that would be adversely affected by the amendment.
The Trustee
We will include information regarding the trustee under an
indenture in any prospectus supplement relating to the debt
securities to be issued under the indenture. The indentures will
provide that in case any event of default shall occur (and be
continuing), the trustee will be required to use the degree of
care and skill of a prudent man in the conduct of his own
affairs. The trustee will be under no obligation to exercise any
of its powers under the indentures at the request of any of the
holders of the debt securities, unless the holders shall have
offered the trustee reasonable indemnity against the costs,
expenses and liabilities it might incur. The indentures and
provisions of the Trust Indenture Act incorporated by reference
in the indenture contain limitations on the right of a trustee,
should it become a creditor of ours, to obtain payment of claims
or to realize on property received by it in respect of any claims
as security or otherwise.
DESCRIPTION OF WARRANTS
We summarize below some of the provisions that will apply to
the warrants unless the applicable prospectus supplement provides
otherwise. The summary may not contain all information that is
important to you. The complete terms of the warrants will be
contained in the applicable warrant certificate and warrant
agreement. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the warrant certificate and the warrant agreement. You should
also read the prospectus supplement, which will contain
additional information and which may update or change some of the
information below.
General
We may issue warrants, including warrants to purchase common
stock and debt securities, as well as other types of warrants.
We may issue the warrants independently or together with other
securities. The warrants may be attached to or separate from the
other securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a
warrant agent. The warrant agent will be our agent and will not
assume any obligations to any owner of the warrants.
Common Stock Warrants
General. Under the common stock warrant agreement, warrants
may be issued in one or more series. The prospectus supplement
and the common stock warrant agreement relating to any series of
warrants will include specific terms of the warrants. These terms
include the following:
<PAGE> 33
. the title and aggregate number of warrants;
. the price or prices at which the common stock
warrants will be issued;
. the currency or currencies or currency units or
composite currencies in which the price of the
warrants may be payable;
. the amount of common stock for which the warrant
can be exercised and the price or the manner of
determining the price and currency or other
consideration to purchase the common stock;
. the date on which the right to exercise the
warrant begins and the date on which the right
expires;
. if applicable, the minimum or maximum amount of
warrants that may be exercised at any one time;
. if applicable, the designation and terms of the
securities with which the warrants are issued and
the number of warrants issued with each other
security;
. any provision dealing with the date on which the
warrants and related securities will be separately
transferable;
. any mandatory or optional redemption provision;
. the identity of the common stock warrant agent;
and
. any other terms of the warrants.
The warrants will be represented by certificates. The
warrants may be exchanged under the terms outlined in the common
stock warrant agreement. We will not charge any service charges
for any transfer or exchange of warrant certificates, but we may
require payment for tax or other governmental charges in
connection with the exchange or transfer. Unless the prospectus
supplement states otherwise, until a common stock warrant is
exercised, a holder will not be entitled to any payments on or
have any rights with respect to the common stock issuable upon
exercise of the common stock warrant.
Exercise of Common Stock Warrants. To exercise the
warrants, the holder must provide the common stock warrant agent
with the following:
. payment of the exercise price;
. any required information described on the warrant
certificates;
. the number of warrants to be exercised;
. an executed and completed warrant certificate; and
. any other items acquired by the common stock
warrant agreement.
The common stock warrant agent will issue a new warrant
certificate for any warrants not exercised. Unless the
prospectus supplement states otherwise, no fractional shares will
be issued upon exercise of warrants, but we will pay the cash
value of any fractional shares otherwise issuable.
The exercise price and the number of shares of common stock
that each warrant can purchase will be adjusted upon the
occurrence of events described in the common stock warrant
agreement, including the issuance of a common stock dividend or a
combination, subdivision or reclassification of common stock.
Unless the prospectus
<PAGE> 34
supplement states otherwise, no adjustment
will be required until cumulative adjustments require an
adjustment of at least 1%. From time to time, we may reduce the
exercise price as may be provided in the common stock warrant
agreement.
Unless the prospectus supplement states otherwise, if we
enter into any consolidation, merger, or sale or conveyance of
our property as an entirety, the holder of each outstanding
warrant will have the right to the kind and amount of shares of
stock, other securities, property or cash receivable by a holder
of the number of shares of common stock into which the warrants
were exercisable immediately prior to the occurrence of the
event.
Modification of the Common Stock Warrant Agreement. The
common stock warrant agreement will permit us and the common
stock warrant agent, without the consent of the common stock
warrant holders, to supplement or amend the agreement in the
following circumstances:
. to cure any ambiguity;
. to correct or supplement any provision which may
be defective or inconsistent with any other
provisions; or
. to add new provisions regarding matters or
questions that we and the common stock warrant
agent may deem necessary or desirable and which do
not adversely affect the interests of the common
stock warrant holders.
Debt Warrants
The applicable prospectus supplement will describe the
following terms of warrants to purchase debt securities:
. the title and aggregate number of the debt
warrants;
. the price or prices at which the debt warrants
will be issued;
. the currency or currencies or currency units or
composite currencies in which the price of the
debt warrants may be payable;
. the designation, aggregate principal amount and
terms of the debt securities purchasable upon
exercise of the debt warrants;
. the price at which, and currency or currencies or
currency units or composite currencies in which,
the debt securities purchasable upon exercise of
the debt warrants may be purchased;
. the date on which the right to exercise the debt
warrants begins and the date on which the right
expires;
. if applicable, the minimum or maximum amount of
the debt warrants that may be exercised at any one
time;
. if applicable, the designation and terms of the
securities with which the debt warrants are issued
and the number of the debt warrants issued with
each other security;
. if applicable, the date on and after which the
debt warrants and the related other securities
will be separately transferable;
. any mandatory or optional redemption provision;
. the identity of the debt securities warrant agent;
<PAGE> 35
. information with respect to book-entry procedures,
if any;
. if applicable, a discussion of United States
federal income tax considerations; and
. any other terms of the debt warrants, including
terms, procedures and limitations relating to the
exchange and exercise of the debt warrants.
Other Warrants
We may issue warrants to purchase other securities,
including preferred stock. The applicable prospectus supplement
will describe the following terms of any other warrants:
. the title and aggregate number of the warrants;
. the price or prices at which the warrants will be
issued;
. the currency or currencies or currency units or
composite currencies in which the price of the
warrants may be payable;
. the designation and terms of the preferred stock
or other securities purchasable upon exercise of
the warrants;
. the price at which, and the currency or currencies
or currency units or composite currencies in which
the securities purchasable upon exercise of such
warrants may be purchased;
. the date on which the right to exercise the
warrants begins and the date on which the right
expires;
. if applicable, the minimum or maximum amount of
warrants that may be exercised at any one time;
. if applicable, the designation and terms of the
securities with which the warrants are issued and
the number of warrants issued with each other
security;
. if applicable, the date on and after which the
warrants and the related other securities will be
separately transferable;
. any mandatory or optional redemption provision;
. the identity of the warrant agent;
. information with respect to book-entry procedures,
if any;
. if applicable, a discussion of United States
federal income tax considerations; and
. any other terms of the warrants, including terms,
procedures and limitations relating to the
exchange and exercise of the warrants.
PLAN OF DISTRIBUTION
We may sell securities directly to one or more purchasers or
to or through underwriters, dealers or agents. Our prospectus
supplement will set forth the terms of the offering, including
the name or names of any underwriters, the purchase price and
proceeds to us from such sale, any underwriting discounts and
other items constituting underwriters' compensation, the initial
public offering price and any discounts or concessions allowed,
reallowed or paid to dealers, and any securities exchanges on
which the securities may be listed.
<PAGE> 36
We may distribute our securities from time to time in one or
more transactions at a fixed price or prices (which may be
changed), at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated
prices. Our prospectus supplement will describe the method of
distribution.
If underwriters are used in the sale, the underwriters may
acquire the securities for their own account and may resell them
from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Securities may be
offered to the public through underwriting syndicates represented
by one or more managing underwriters or directly by one or more
underwriters without a syndicate. If an underwriting syndicate
is used, the managing underwriter or underwriters will be named
in the prospectus supplement. Unless otherwise set forth in the
prospectus supplement, the obligations of the underwriters to
purchase securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
securities offered if any are purchased. Any initial public
offering price and any discounts or concessions allowed,
reallowed or paid to dealers may be changed from time to time.
If a dealer is used in an offering of securities, we may
sell the securities to the dealer, as principal. The dealer may
then resell the securities to the public at varying prices to be
determined by the dealer at the time of sale. The terms of the
transaction will be set forth in a prospectus supplement.
Commissions payable by us to any agent involved in the offer
or sale of securities (or the method by which such commissions
may be determined) will be set forth in a prospectus supplement.
Unless otherwise indicated in the prospectus supplement, the
agent will be acting on a best efforts basis.
If so indicated in the prospectus supplement, we may
authorize underwriters, dealers or agents to solicit offers by
certain specified institutions to purchase securities from us
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. These contracts will
be subject to the conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the
commission payable by us for solicitation of the contracts.
Dealers and agents named in a prospectus supplement may be
deemed to be underwriters of the securities within the meaning of
the Securities Act. Underwriters, dealers and agents may be
entitled under agreements entered into with us to indemnification
by us against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to
payments that the underwriters, dealers or agents may be required
to make. Underwriters, dealers and agents may be customers of,
engage in transactions with, or perform services for us in the
ordinary course of business.
As of the date of this prospectus, only our common stock is
traded on the New York Stock Exchange. Except for our common
stock, each security sold using this prospectus will have no
established trading market. Any underwriters to whom securities
are sold may make a market in the securities, but will not be
obligated to do so and may discontinue their market making
activities at any time. There can be no assurance that a
secondary market will be created for any of the securities that
may be sold using this prospectus or that any market created will
continue.
LEGAL MATTERS
The validity of the securities will be passed upon for us by
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.,
New Orleans, Louisiana.
EXPERTS
Our audited financial statements and schedules incorporated
in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 1998 have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in
their reports contained in the Form 10-K, and are incorporated in
this prospectus by reference in reliance upon the authority of
Arthur Andersen LLP as experts in accounting and auditing in
giving these reports.
With respect to our unaudited interim financial information
for the quarters ended September 30, June 30 and March 31, 1999
and 1998, Arthur Andersen LLP has applied limited procedures in
accordance with
<PAGE> 37
professional standards for a review of that
information. However, their separate reports on our interim
financial information for these periods state that they did not
audit and they do not express an opinion on that interim
financial information. Accordingly, you should restrict your
degree of reliance on their reports on that information in light
of the limited nature of the review procedures applied. In
addition, the accountants are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because
those reports are not a "report" or a "part" of the registration
statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act of 1933.
The information included in this prospectus regarding the
quantities of reserves of our oil and gas properties and the
related future cash flows and present values is based on
estimates of the reserves and present values prepared by Ryder
Scott Company, Petroleum Engineers, in reliance upon their
authority as experts in petroleum engineering.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange
Commission (the "SEC"). You can read and copy that information at
the public reference room of the SEC at 450 Fifth Street, NW,
Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330
for more information about the public reference room. The SEC
also maintains an Internet site that contains reports, proxy and
information statements and other information regarding
registrants, like us, that file reports with the SEC
electronically. The SEC's Internet address is
http://www.sec.gov.
We have filed a registration statement and related exhibits
with the SEC under the Securities Act of 1933. The registration
statement contains additional information about us and our
securities. You may read the registration statement and exhibits
without charge at the SEC's public reference room, and you may
obtain copies from the SEC at prescribed rates.
The SEC allows us to "incorporate by reference" the
information we file with it, which means that we can disclose
important information to you by referring to documents on file
with the SEC. Some information that we currently have on file is
incorporated by reference and is an important part of this
prospectus. Some information that we file later with the SEC
will automatically update and supersede this information.
We incorporate by reference the following documents that we
have filed with the SEC pursuant to the Securities Exchange Act
of 1934:
. Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (filed March 19, 1999);
. Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1999 (filed May 14, 1999); for the
quarter ended June 30, 1999 (filed August 9,
1999); and for the quarter ended September 30,
1999 (filed November 12, 1999);
. Current Reports on Form 8-K dated December 21,
1999 (filed December 21, 1999), dated January 14,
2000 (filed January 20, 2000) and dated January
19, 2000 (filed January 20, 2000); and
. All documents filed by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this prospectus and prior to
the termination of this offering.
<PAGE> 38
At your request, we will provide you with a free copy of any
of these filings (except for exhibits, unless the exhibits are
specifically incorporated by reference into the filing). You may
request copies by writing or telephoning us at:
McMoRan Exploration Co.
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: John G. Amato
(504) 582-4000
You should rely only on information incorporated by
reference or provided in this prospectus and any prospectus
supplement. We have not authorized anyone else to provide you
with different information.
<PAGE> 39
Prospective investors may
rely only on the information
contained in this
prospectus. Neither McMoRan
Exploration Co. nor any McMoRan
underwriter has authorized Exploration Co.
anyone to provide
prospective investors with
different or additional
information. This
prospectus is not an offer
to sell nor is it seeking an
offer to buy these
securities in any
jurisdiction where the offer
or sale is not permitted.
The information contained in
this prospectus is correct
only as of the date of this
prospectus, regardless of
the time of the delivery of
this prospectus or any sale
of these securities.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
TABLE OF CONTENTS
PROSPECTUS
Page
The Company ............... 2
Risk Factors ............. 4
Use of Proceeds ...........12
Ratio of Earnings to Fixed
Charges ..................12
Description of Common
Stock ....................13
Description of Preferred
Stock ....................17
Description of Depositary
Shares ....................19
Description of Debt
Securities ...............21
Description of Warrants ..33
Plan of Distribution .....36
Legal Matters ............37
Experts ..................37
Where You Can Find More
Information ..............38
January 21, 2000
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by us in connection
with the issuance and distribution of the securities being
registered are as follows:
SEC registration fee......................$79,200
Printing costs............................ 75,000
Legal fees and expenses...................100,000
Accounting fees and expenses.............. 30,000
Rating agency fees........................ 25,000
Blue sky fees and expenses................ 5,000
Trustee's and registrar's fees............ 15,000
Miscellaneous............................. 10,800
--------
Total....................................$340,000
========
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers us to indemnify, subject to the standards prescribed in
that Section, any person in connection with any action, suit or
proceeding brought or threatened by reason of the fact that the
person is or was our director, officer, employee or agent.
Article VIII of our certificate of incorporation provides that
our company shall indemnify any person who is or was a director,
officer, employee or agent of our company, to the fullest extent
authorized by law. In addition, Section 9 of our bylaws provides
that we shall defend and indemnify each person who was or is made
a party to, or is threatened to be made a party to, or is
otherwise involved in, any action, suit, or proceeding by reason
of the fact that the person is or was our director, officer,
employee or agent if:
. the director, officer, agent or employee is successful
in defending the claim on its merits or otherwise; or
. the director, officer, agent or employee meets the
standard of conduct described in Section 9 of our
bylaws.
However, the director, officer, agent or employee of our
company will not be entitled to indemnification if:
. the claim is one brought by the director, officer,
agent or employee against our company;
. the claim is one brought by the director, officer,
agent or employee as a derivative action by our company
or in the right of our company, and the action is not
approved by our board of directors.
The rights conferred by Article VIII of our certificate of
incorporation and Section 9 of our bylaws are contractual rights
and include the right to be paid by us the expenses incurred in
defending the action, suit or proceeding in advance of its final
disposition.
Article VIII of our certificate of incorporation provides
that our directors will not be personally liable to us or our
stockholders for monetary damages resulting from breaches of
their fiduciary duty as directors except (1) for any breach of
the duty of loyalty to us or our stockholders, (2) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174
of the General Corporation Law of Delaware, which makes directors
liable for unlawful dividend or unlawful stock repurchases or
redemptions or (4) transactions from which directors derive
improper personal benefit.
<PAGE> II-2
We have an insurance policy insuring our directors and
officers against certain liabilities, including liabilities under
the Securities Act of 1933.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
4.1 Amended and Restated Certificate of Incorporation of the
Company. Incorporated by reference to Exhibit 3.1 to
the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1998.
4.2 By-Laws of the Company, as amended, effective as of
February 14, 1999. Incorporated by reference to Exhibit
3.2 to the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 1998.
4.3 Form of Indenture for Senior Debt Securities.
4.4 Form of Senior Debt Security.**
4.5 Form of Indenture for Subordinated Securities.
4.6 Form of Subordinated Debt Security.**
4.7 Form of Certificate of Designations of Preferred Stock.
4.8 Form of Stock Certificate of the Company's Common Stock.
Incorporated by reference to Exhibit 4.1 to Amendment
No. 1 to the Registration Statement on Form S-4 (File
Number 333-61171) of the Company filed with the SEC on
October 6, 1998.
4.9 Form of Deposit Agreement.
4.10 Form of Depositary Receipt.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., as to the legality of the securities.
12 Statement re computation of ratios.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre, L.L.P. included as part of Exhibit 5.
23.3 Consent of Ryder Scott Company.
24 Powers of Attorney.
25.1 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Debt Securities.**
____________
**To be filed by amendment or subsequently incorporated into this
registration statement.
<PAGE> II-3
Item 17. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this registration statement; notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any material
change to such information in this registration
statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) 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 Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(b) 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.
(c) 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.
(2) 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 the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) 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, 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 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(4) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the Trust
Indenture Act of 1939 in accordance with the rules and
regulations prescribed by the SEC under section 305(b)(2) of the
Trust Indenture Act.
<PAGE> II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it had 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
New Orleans, Louisiana, on January 21, 2000.
McMoRan Exploration Co.
By: /s/ Richard C. Adkerson
-----------------------
Richard C. Adkerson
President, Chief Executive
Officer and
Co-Chairman of the Board of
Directors
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons and in the capacities indicated on January 21, 2000.
Signature Title
--------- -----
/s/Richard C. Adkerson President, Chief Executive Officer
-------------------- and Co-Chairman of the
Richard C. Adkerson Board of Directors
(Principal Executive Officer)
* Senior Vice President and
----------------- Chief Financial Officer
Nancy D. Parmelee (Principal Financial Officer)
* Vice President and Controller -
----------------------- Financial Reporting
C. Donald Whitmire, Jr. (Principal Accounting Officer)
* Co-Chairman of the
---------------- Board of Directors
James R. Moffett
* Vice Chairman of the
----------------- Board of Directors
Rene L. Latiolais
* Director
--------------
Robert A. Day
* Director
--------------
Gerald J. Ford
* Director
--------------------
H. Devon Graham, Jr.
<PAGE> S-1
* Director
-----------------
B.M. Rankin, Jr.
*By:/s/ Richard C. Adkerson
---------------------
Richard C. Adkerson
Attorney-in-Fact
<PAGE> S-2
EXHIBIT INDEX
Exhibit No.
Description
4.3 Form of Indenture for Senior Debt Securities.
4.5 Form of Indenture for Subordinated Securities.
4.7 Form of Certificate of Designations of Preferred Stock.
4.9 Form of Deposit Agreement.
4.10 Form of Depositary Receipt.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre, L.L.P., as to the legality of the
securities.
12 Statement re computation of ratios.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Ryder Scott Company.
24 Powers of Attorney.
Exhibit 4.3
MCMORAN EXPLORATION CO., Issuer
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 200
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined 1
Authenticating Agent 1
Authorized Newspaper 2
Authorized Signatory 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company Order 2
Corporate Trust Office 2
Coupon 2
Debt 2
Default 3
Defeasance 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Guarantee 3
Holder, Holder of Securities, Securityholder 3
Indenture 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 4
Original Issue Discount Security 4
Outstanding 4
Periodic Offering 5
Person 5
principal 5
Redemption Date 5
Redemption Price 5
Registered Global Security 5
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Stated Maturity 6
Trust Indenture Act of 1939 6
Trustee 6
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate of Authentication 7
SECTION 2.3 Amount Unlimited; Issuable in Series 8
SECTION 2.4 Authentication and Delivery of Securities 11
SECTION 2.5 Execution of Securities 13
SECTION 2.6 Certificate of Authentication 14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 14
SECTION 2.8 Registration, Transfer and Exchange 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 18
SECTION 2.10 Cancellation of Securities; Disposition Thereof 19
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 21
SECTION 3.2 Offices for Payments, etc. 22
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee 23
SECTION 3.4 Paying Agents 23
SECTION 3.5 Written Statement to Trustee 24
SECTION 3.6 Corporate Existence 24
SECTION 3.7 Luxembourg Publications 24
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER AND THE
TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders 24
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists 24
SECTION 4.3 Reports by the Issuer 24
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default 25
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt 28
SECTION 5.3 Application of Proceeds 30
SECTION 5.4 Suits for Enforcement 31
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings 31
SECTION 5.6 Limitations on Suits by Securityholders 31
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default 32
SECTION 5.9 Control by Securityholders 32
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances 33
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default 34
SECTION 6.2 Certain Rights of the Trustee 35
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof 36
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. 36
SECTION 6.5 Monies Held by Trustee 36
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim 37
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. 37
SECTION 6.8 Persons Eligible for Appointment as Trustee 37
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee 38
SECTION 6.10 Acceptance of Appointment by Successor Trustee 39
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee 40
SECTION 6.12 Preferential Collection of Claims Against the Issuer 41
SECTION 6.13 Appointment of Authenticating Agent 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders 42
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities 42
SECTION 7.3 Holders to be Treated as Owners 43
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding 43
SECTION 7.5 Right of Revocation of Action Taken 44
SECTION 7.6 Record Date for Consents and Waivers 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders 45
SECTION 8.2 Supplemental Indentures With Consent of Securityholders 46
SECTION 8.3 Effect of Supplemental Indenture 48
SECTION 8.4 Documents to Be Given to Trustee 48
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures 48
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions 49
SECTION 9.2 Successor Entity Substituted 49
SECTION 9.3 Opinion of Counsel to Trustee 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture 50
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities 54
SECTION 10.3 Repayment of Monies Held by Paying Agent 54
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years 55
SECTION 10.5 Indemnity for U.S. Government Obligations 55
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability 55
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders 56
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture 56
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders 56
SECTION 11.5 Officers' Certificates and Opinions of Counsel,
Statements to Be Contained Therein 57
SECTION 11.6 Payments Due on Saturdays, Sundays and Legal Holidays 58
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 58
SECTION 11.8 New York Law to Govern; Separability 58
SECTION 11.9 Counterparts 58
SECTION 11.10 Effect of Headings 58
SECTION 11.11 Securities in a Foreign Currency or in ECU 58
SECTION 11.12 Judgment Currency 59
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 60
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities Called for Redemption 61
SECTION 12.4 Exclusion of Certain of Securities from Eligibility
for Selection for Redemption 62
SECTION 12.5 Mandatory and Optional Sinking Funds 62
TESTIMONIUM 65
SIGNATURES AND SEALS 65
ACKNOWLEDGMENTS 66
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the Indenture
to be dated as of ___________________, 2000 between McMoRan Exploration Co.
and
____________________, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture
THIS INDENTURE, dated as of __________________________, 2000, by and
between McMoRan Exploration Co. (the "Issuer"), a Delaware corporation, and
____________________, a _____________________ corporation, as trustee (the
"Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement of the Issuer according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
are defined in the Securities Act and referred to in the Trust Indenture Act of
1939 (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States which are in
effect on the date or time of any determination. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of London, will, if practicable, be the Financial Times
(London Edition) and, in the case of Luxembourg, will, if practicable, be the
Luxemburger Wort) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in the City of New York, London or
Luxembourg as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication
of such notice.
"Authorized Signatory" means any of the chairman of the Board of
Directors, the president, any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "Vice
President"), the treasurer or any assistant treasurer or the secretary or any
assistant secretary of any Person.
"Board of Directors" of any Person means the Board of Directors of
such Person, or any committee of such Board duly formed and authorized to act on
its behalf.
"Board Resolution" of any Person means a copy of one or more
resolutions, certified by the secretary or an assistant secretary of such Person
to have been duly adopted or consented to by the Board of Directors of such
Person and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day that in the
city (or in any cities, if more than one) in which amounts are payable, as
specified in the form of such Security, which is not a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, the body performing such duties on such date.
"Company Order" means a written statement, request or order of the
Issuer which is signed in the Issuer's name by the chairman of the Board of
Directors, the president, any executive vice president, any senior vice
president or any vice president of the Issuer.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at
.
"Coupon" means any interest coupon appertaining to a Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in Section 10.1.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Registered
Global Securities, the Person designated as the Depositary by the Issuer
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series;
provided that any Person that is a Depositary hereunder must be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means The European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the Security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy, insolvency,
reorganization or similar law in any applicable jurisdiction.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issuer" means McMoRan Exploration Co., a Delaware corporation, and,
subject to Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officers' Certificate" means a certificate signed by the chairman
of the board or the president or any vice president (whether or not designated
by a number or numbers or a word or words added before or after the title "Vice
President") and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 11.5, if and to
the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Issuer or such other legal
counsel who may be satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 11.5, if and to the extent required
hereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the Issue Date of such Security or (b) the Issue Date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means, with respect to a Security, the date of
original issuance thereof.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding", when used with reference to Securities of any series
issued hereunder, shall, subject to the provisions of Section 7.4, mean, as of
any particular time, all Securities of such series authenticated and delivered
by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article 10 hereof shall not be applicable), or portions
thereof, for the payment or redemption of which monies or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer (if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereto, are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.9 (unless proof satisfactory to the Trustee is
presented that any of such Securities is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities of any
series or any portion thereof, shall be deemed to include "and premium, if
any".
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer, which Security shall be without Coupons.
"Regular Record Date" for interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3, or if no such date is established,
if such Interest Payment Date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such Interest Payment
Date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such Regular Record Date is a Business Day.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer", when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, the Secretary, the
Treasurer, or any other officer of the Trustee customarily performing corporate
trust functions.
"SEC Reports" shall have the meaning set forth in Section 4.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities of any
series, authenticated and delivered under this Indenture.
"Security Registrar" means the Trustee or any successor Security
Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with respect to any
installment of interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on which such
installment of interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of the issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, issued hereunder shall be substantially in such form and bear
such legends (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions of the Issuer (as set forth in a
Board Resolution of the Issuer or, to the extent established pursuant to rather
than set forth in a Board Resolution of the Issuer, an Officers' Certificate of
the Issuer detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers of the Issuer executing
such Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities are issued as permitted
by Section 2.11, the form thereof also shall be established as provided in the
preceding sentence.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
____________________________, Trustee
By:
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
______________________________, Trustee
By:
As Authenticating Agent
By:
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
Debt of the Issuer. There shall be established in or pursuant to one or more
Board Resolutions of the Issuer (and to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Date on which any such interest shall be payable and (in
the case of Registered Securities) the Regular Record Date for any interest
payable on any Interest Payment Date and/or the method by which such rate or
rates or Regular Record Date or Dates shall be computed or determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(7) the right, if any, of the Issuer or any Holder to redeem or
cause to be redeemed Securities of the series, in whole or in part, at its
option and the period or periods within which, the price or prices at which, and
the manner in which (if different from the provisions of Article Twelve hereof),
and any terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise and/or the method by which
such price or prices shall be determined;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices (and/or the method by which such price or prices
shall be determined) at which, the period or periods within which and the manner
in which (if different from the provisions of Article Twelve hereof) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of
that series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made and the manner in which the exchange rate with respect to
such payments shall be determined;
(13) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to the value or
price of any one or more commodities, currencies or indices, the manner in which
such amounts will be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities and, if so, the Depositary therefor and the form of
any legend in addition or in lieu of that provided in Section 2.4 to be borne by
such Registered Global Security) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions and procedures
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon, if other than provided in Section 2.8, and the
terms upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa if other than provided in
Section 2.8;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series to Holders, or certain
Holders, thereof in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts (and the terms of
any such option);
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the Securities
of such series;
(18) provisions, if any, granting specific rights to Holders or
Securities of such series upon the occurrence of such events as may be
specified;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants set forth herein (including any defined terms
relating thereto);
(20) the term and condition, upon which and the manner in which
Securities of the series may be defeased or defeasible if different from the
provisions of Article Ten;
(21) whether the Securities will be issued as global Securities
and, if other than as provided in Section 2.8, the terms upon which such global
Securities may be exchanged for definitive Securities;
(22) offices at which presentation and demands may be made and
notices be served, if other than the Corporate Trust Office; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining thereto, if any,
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon the execution
and delivery of this Indenture, or from time to time thereafter, Securities,
including Coupons appertaining thereto, if any, may be executed by the Issuer
and delivered to the Trustee for authentication together with the applicable
documents referred to below in this section, and the Trustee shall thereupon
authenticate and deliver such Securities and Coupons appertaining thereto, if
any, to or upon the order of the Issuer (contained in the Company Order referred
to below in this section) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by such
Company Order, without any further action by the Issuer. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Company Order or procedures authorized by such Company Order.
If provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and
4 below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) a Company Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or interest rate or rates
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery of
Securities pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral or electronic instructions shall be
promptly confirmed in writing, and (e) after the original issuance of the first
Security of such series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for original issuance will be
deemed to be a certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities and stating that the form or forms and terms of the
Securities and Coupons, if any, have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of Counsel of
the Issuer, or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel of the Issuer, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of a Periodic Offering, certain
terms of the Securities have been established pursuant to a Board Resolution of
the issuer, an Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be established pursuant
to procedures set forth in a Company Order shall have been established, all such
terms will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under the Securities and the
Coupons, if any, will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Issuer or to the best of
counsel's knowledge any agreement or other instrument binding upon the Issuer
that is material to the Issuer or, to the best of such counsel's knowledge but
without any independent investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer and no
consent, approval or authorization of any governmental body or agency is
required for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities and
Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, he has relied, to the extent he deems proper, upon certificates
of officers of the Issuer and any of its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its Board of Directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all or a
portion of the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in accordance with this Section 2.4 and the Company Order with respect to
such series, authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all or a portion of the Securities of such series
issued and not yet canceled or exchanged to be represented by such Registered
Global Securities, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or a nominee thereof
or a custodian therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "This Security is a
Registered Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture."
SECTION 2.5 Execution of Securities. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman of the Board of Directors, the president, any vice president (whether
or not designated by a number or numbers or a word or words added before or
after the title "Vice President") or the Treasurer of the Issuer, under its
corporate seal (except in the case of Coupons) which may, but need not be,
attested. Such signature may be the manual or facsimile signature of the
present or any future such chairman or officers. The corporate seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Security or Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such Person as, at
the actual date of the execution of such Security or Coupon, shall be the proper
officer of the Issuer, although at the date of the execution and delivery of
this Indenture any such Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form set forth
in Section 2.2, executed by the Trustee by the manual signature of one of its
authorized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
and Coupons, if any, appertaining thereto so authenticated have been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the chairman or the officers
of the Issuer executing the same may determine with the approval of the Trustee,
as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or Resolutions or indenture supplemental hereto referred to in
Section 2.3 or, if not so specified, each such Unregistered Security shall be
dated as of the date of issuance of the first Unregistered Security of such
series to be issued. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any Regular Record Date applicable to
such series with respect to any Interest Payment Date for such series shall be
entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Registered Security subsequent
to such Regular Record Date and prior to such Interest Payment Date, except if
and to the extent the Issuer shall default in the payment of the interest due on
such Interest Payment Date for such series, in which case such defaulted
interest shall then cease to be payable to the Holder on such Regular Record
Date by virtue of having been such Holder and shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. Interest on any Unregistered Securities which is due on any Interest
Payment Date shall be paid to the Holder of the applicable Coupon appertaining
to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register in which, subject to such
reasonable regulations as it may prescribe, it will provide for the registration
of Registered Securities of each series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee. There may not be more
than one register for each series of Securities.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of such series, Stated Maturity,
interest rate and original issue date in any authorized denominations and of a
like aggregate principal amount and tenor.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged for a
Security of the same series, of like tenor, in authorized denominations and in
an equal aggregate principal amount upon surrender of such Security at an office
or agency to be maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, and the Issuer shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, the Security or Securities
which the Holder making the exchange shall be entitled to receive bearing a
number or other distinguishing symbol not contemporaneously outstanding.
Subject to the foregoing, (i) a Registered Security of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a
Registered Security or Securities of the same series; (ii) if the Securities of
any series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, Unregistered Securities may be
exchanged for a Registered Security or Securities of the same series, but a
Registered Security may not be exchanged for an Unregistered Security or
Securities; and (iii) if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.3, any such Unregistered Security or Securities may be exchanged for
an Unregistered Security or Securities of the same series; provided that in
connection with the surrender of any Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default must be
surrendered with the Securities being exchanged. If the Holder of an
Unregistered Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Unregistered Securities are accompanied by payment in funds acceptable to the
Issuer in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Issuer
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any paying agent harmless. If thereafter
the Holder of such Security shall surrender to any paying agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive from the Issuer the amount of such payment;
provided, however, that, except as otherwise provided in Section 3.2, interest
represented by Coupons shall be payable only upon the presentation and surrender
of those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case an Unregistered Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series of like tenor after the close of business at such officer
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any subsequent
record date and the before the opening of business at such office or agency on
such subsequent date for the payment of interest in default, such Unregistered
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or subsequent date for payment, as the case may be, and interest or
in interest in default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Unregistered Security, but
will be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
canceled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee,
duly executed by the Holder or his attorney duly authorized in writing.
Each Registered Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Registered
Global Security or a nominee thereof, and each such Registered Global Security
shall constitute a single security for all purposes of this Indenture.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed, (b)
any Securities selected, called or being called for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed, (c) to register the transfer of or exchange any
Security if the Holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Security in whole or in part, except the portion of
such Security not required to be repurchased or (d) to exchange any Unregistered
Security so selected for redemption, except that such Unregistered Security may
be exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or is no longer eligible because it ceased to be a clearing agency
registered under the Exchange Act or any other applicable statute or regulation,
the Issuer shall appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Registered Securities be represented by one or more Registered
Global Securities shall no longer be effective and the Issuer will execute, and
the Trustee, upon receipt of an Officers' Certificate of the Issuer for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, of like tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of 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 Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be canceled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
None of the Issuer, the Trustee, any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
All Securities issued upon any transfer or exchange of Securities shall be
valid and legally binding obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
foregoing (any of which, other than the Issuer, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result in
adverse federal income tax consequences to the Issuer (such as, for example, the
inability of the Issuer to deduct from its income, as computed for federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be apparently destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so apparently destroyed, lost
or stolen and, if applicable, with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange for the Security to which a mutilated, defaced, destroyed, lost
or stolen Coupon appertained with Coupons appertaining thereto corresponding to
the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of apparent destruction, loss or theft,
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the case of a
mutilated or defaced Security or Coupon, the applicant for a substitute Security
or Coupon shall surrender such mutilated or defaced Security or Coupon to the
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless
from all risks, however remote, arising as a result of such payment and, in
every case of apparent destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is apparently destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the apparently destroyed,
lost or stolen Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, or apparently destroyed, lost or stolen Securities and
Coupon and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, repurchase, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall dispose of canceled Securities and
Coupons held by it and deliver a certificate of disposition to the Issuer unless
the Issuer shall direct that canceled Securities be returned to it. If the
Issuer shall acquire any of the Securities or Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities issued hereunder that it
will duly and punctually pay or cause to be paid the principal of and interest
on, each of the Securities of such series (together with any additional amounts
payable with respect to and pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in the
Securities of such series and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons attached (together
with any additional amounts payable with respect to such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable with respect
to such Securities) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation of such Securities
for notation thereon of the payment of such interest, in each case subject to
any restrictions that may be established pursuant to Section 2.3. The interest
on Registered Securities (together with any additional amounts payable with
respect to such Security ) shall be payable only to or upon the written order of
the Holders thereof entitled thereto and, at the option of the Issuer, may be
paid by wire transfer (subject to the procedures of the paying agent) or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or remain
Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Registered Securities of each series may
be surrendered for payment and where the Registered Securities of each series
may be surrendered for registration of transfer or exchange as is provided in
this Indenture.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
office or agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be surrendered for payment or exchange. No payment on
or exchange of any Unregistered Security or Coupon will be made upon surrender
of such Unregistered Security or Coupon at an office or agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in Dollars at each
agency maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto, or
this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the location
of any such office or agency and of any change of location thereof. The Issuer
hereby initially designates the Corporate Trust Office of the Trustee maintained
in the City of New York as the office or agency for each such purpose to be
carried out in New York. The Issuer shall designate an office or agency outside
the United States for each such purpose relating to Unregistered Securities
prior to the issuance of any Unregistered Securities. In case the Issuer shall
fail to maintain any such office or agency or shall fail to provide such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of the Security
Registrar in which, subject to such reasonable regulations as it may prescribe,
the Issuer will provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transferring Securities as herein
provided.
The Issuer may from time to time designate one or more additional offices
or agencies where the Securities of any series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain the agencies
provided for in the first three paragraphs of this Section 3.2. The Issuer will
give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable;
(c) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent; and
(d) that it will in all respects comply with the provisions of the
Trust Indenture Act of 1939 applicable to such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, such sum to be
held as provided in the Trust Indenture Act of 1939, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Issuer will promptly notify the Trustee of
any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or with respect to this Indenture or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before March 31 in each year (beginning with March 31, _____) a
brief certificate (which need not comply with Section 11.5) from the Issuer,
signed by its principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the performance by
the signer of his duties as an officer of the Issuer, he would normally have
knowledge of any Default or non-compliance by the Issuer in the performance or
fulfillment of any covenant, agreement or condition of the Issuer, contained in
this Indenture, stating whether or not he has knowledge of any such Default or
non-compliance and, if so, specifying each such Default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises; provided that the
Issuer shall not be required to preserve any such right or franchise if the
Issuer shall determine that the preservation thereof is no longer desirable in
the conduct of its business and that the loss thereof is not disadvantageous in
any material respect to the Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 5.11, 6.9, 6.10, 8.2, 10.4, 12.2 or 12.4, the
party making such publication in the City of New York and London shall also, to
the extent that notice is required to be given to Holders of Securities of any
series by applicable Luxembourg law or stock exchange regulation, as evidenced
by any Officers' Certificate delivered to such party, make a similar publication
in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities each covenants and agrees that it will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Securities of each
series:
(a) semiannually and not more than 15 days after each Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security Registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished for such series.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to the Trustee as provided in Section 4.1, (ii) received by the
Trustee in its capacity as Security Registrar for such series, if so acting, and
(iii) filed with it within two preceding years pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939. The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under any series of the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act of 1939.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that none of the Issuer, the
Trustee or any agent of any of the Issuer or the Trustee shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act of 1939 at the times and in the manner provided pursuant to
such Act, provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
("SEC Reports") shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after _________
of each year, commencing with the first _____ following the first issuance of
Securities pursuant to Section 2.4, if required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such ______ with respect to
any of the events specified in said Section 313(a) which may have occurred since
the later of the immediately preceding ___________________ and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act and Section 5.11 hereof at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Section 313(c) of the Trust Indenture
Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities of any series are listed, with the Commission and with the
Issuer. The Issuer will promptly notify the Trustee when the Securities of any
series are listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default," with respect to Securities of any series wherever
used herein, means one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
of the Securities of such series or any Coupon appertaining thereto (together
with any additional amounts payable with respect to such Securities) as and when
the same shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become due and
payable either at their Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of an optional
redemption by the Holders of such Securities, the amount thereof shall be in
excess of $__________ or the equivalent thereof in any currency or composite
currency; or
(c) failure on the part of the Issuer duly to comply with, observe
or perform any of the other covenants or agreements on the part of the Issuer
contained in, or provisions of, the Securities of any series or this Indenture
(other than a covenant or agreement which is not applicable to the Securities of
such series), but only if such default shall not have been remedied for a period
of 60 days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of such series of Securities; or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Issuer in an involuntary case
or proceeding under any applicable Insolvency Law or (B) a decree or order
adjudging the Issuer a bankrupt or insolvent under an applicable Insolvency Law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or liquidation of the affairs
of the Issuer and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case or
proceeding under any applicable Insolvency Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Issuer to the entry of a decree or order for relief in respect of the Issuer in
an involuntary case or proceeding under any applicable Insolvency Law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Issuer or the filing by the Issuer of a petition, answer or consent seeking
reorganization or relief under any applicable Insolvency Law, or the consent by
the Issuer to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Issuer or of any substantial part of the property of
the Issuer or the making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action (which
shall involve the passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(f) failure by the Issuer to make any payment at maturity (or upon
any redemption), including any applicable grace period, in respect of
indebtedness, which term as used herein means obligations (other than the
Securities of such series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Debt") in an amount in excess of
$__________ or the equivalent thereof in any other currency or composite
currency and such failure shall have continued for a period of thirty days after
written notice thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series affected thereby;
(g) a default with respect to any Debt, which default results in
the acceleration of Debt in an amount in excess of $__________ or the equivalent
thereof in any other currency or composite currency without such Debt having
been discharged or such acceleration having been cured, waived, rescinded or
annulled for a period of thirty days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
such series affected thereby; or
(h) any other Event of Default provided for with respect to
Securities of that series in the supplemental indenture under which such series
is issued or in the terms of Securities of such series;
provided that if any such failure, default or acceleration referred to in
clauses (f), (g) and (h) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof, and any
acceleration under this Section 5.1 resulting solely therefrom, shall be deemed
likewise to have been thereupon cured, waived, rescinded or annulled without
further action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default (other than those specified in Section 5.1(d) or
(e)) with respect to one or more series of Securities then Outstanding) occurs
and is continuing, then, and in each and every such case, except for any series
of Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(each series voting as a separate class) by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of the affected series, and the interest
accrued thereon, if any (together with any additional amounts payable with
respect to such Securities), to be due and payable immediately, and upon any
such declaration, the same shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or (e) occurs, the entire principal
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, (together with any additional
amounts payable with respect to such Securities) shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest (together with any additional amounts
payable with respect to such Securities) upon all the Securities of such series
and the principal of any and all Securities of each such series which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, (together with any additional amounts
payable with respect to such Securities) at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series (or the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of
each such series or of all the Securities, as the case may be, (each series
voting as a separate class), then Outstanding, by written notice to the Issuer
and the Trustee, may waive all defaults with respect to such series and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with accrued interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt. The
Issuer covenants that (a) in case Default shall be made in the payment of any
installment of interest on any of the Securities of any series when such
interest shall have become due and payable and such Default shall have continued
for a period of 30 days or (b) in case Default shall be made in the payment of
all or any part of the principal of any of the Securities of any series when the
same shall have become due and payable, whether upon the Stated Maturity of the
Securities of such series or upon any redemption or by declaration or
otherwise, other than a Default that is the result of an optional redemption by
the Holders of Securities of any series, the amount of which is not in excess of
$__________ or the equivalent thereof in any currency or composite currency,
unless such Default shall have continued for a period of 60 days after giving a
notice with respect thereto under Section 5.1(c), then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all such Securities of such series, and such Coupons, if any, for
principal, or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Holders, whether or not
the principal of and interest on Securities of such series be overdue.
If an Event of Default occurs and is continuing, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity to protect and enforce
its rights and the rights of the Holders by such appropriate judicial proceeding
as the Trustee may deem most effectual to protect and enforce any such rights,
and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against the Issuer or any
other obligor upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other obligor upon the
Securities of such series, wherever situated the monies adjudged or decreed to
be payable.
In the case of any judicial proceeding relating to the Issuer or any other
obligor upon the Securities of such series, or the property or creditors of the
Issuer or any such obligor, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In addition, unless
prohibited by applicable law and regulations, the Trustee shall be entitled and
empowered to vote on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceeding or a Person providing
similar functions in comparable proceedings.
The Trustee shall be authorized to collect and receive any monies or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and of the
Trustee on their behalf, and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
series, may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such series or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements, advances and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities of such series
or Coupons appertaining thereto in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect of which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities, parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such monies on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of the same series, of like tenor, in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to the
Securities of such series in respect of which monies have been collected,
including any and all amounts due the Trustee under Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which monies have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which monies have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal; and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such monies
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding, judicial or otherwise, at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless (i) such Holder previously
shall have given to the Trustee written notice of a continuing Event of Default
as hereinbefore provided, (ii) the Holders of not less than 25% in aggregate
principal amount of the Securities of such affected series then Outstanding,
each series treated as a separate class, shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby; (iii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceedings; and (iv) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the Holder of every Security or
Coupon with every other Holder of the Securities of such series or Coupons and
the Trustee, that no one or more Holders of Securities of such series shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or
in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on (together with any additional
amounts payable with respect to and pursuant to the terms of such Securities)
such Security or Coupon and any interest in respect of a Default in the payment
of any such amounts, on or after the respective due dates expressed in such
Security or Coupon or Redemption Dates provided for therein or to institute suit
for the enforcement of any such payment rights on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 2.9 and 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
or Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of any series affected at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee by this Indenture with respect to or
for the benefit of such Securities of such series; provided that such direction
shall not be otherwise than in accordance with applicable law and the provisions
of this Indenture and provided further that (subject to the provisions of
Section 6. 1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal liability or if the
Trustee in good faith by its board of directors or the executive committee
thereof shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of
the acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding with respect to which an Event
of Default shall have occurred and be continuing may on behalf of the Holders of
all the Securities of such series waive any past Default or Event of Default
hereunder with respect to the Securities of such series and its consequences,
except a Default (a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security
affected.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon. In
the case of any such waiver, the Issuer, the Trustee and the Holders of all such
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such affected
series in the manner and to the extent provided in Section 4.4(c), unless such
defaults shall have been cured before the mailing or publication of such notice
(the term "default" or "defaults" for the purposes of this Section 5.11 being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit other
than the Trustee of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit including the Trustee,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series, and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a particular series has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity from the Issuer against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction.
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed),
and any Board Resolution of the Issuer may be evidenced to the Trustee by a copy
thereof certified by the secretary or assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc, The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and, subject to Section 6.12 and Section 310(b) of the Trust Indenture Act
of 1939 may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the provisions of Section
10.4 hereof, all monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any monies received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including but not limited to the costs and expenses of
defending itself against or investigating any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of
or interest on particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. At no time shall the Trustee be an obligor, or directly
or indirectly, control, be controlled by, or under the common control with any
obligor upon any Securities issued hereunder. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.8 or Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor by the Issuer or
by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee with respect
to such series by delivering to the Trustee so removed, to the successor trustee
so appointed and to the Issuer the evidence provided for in Section 7. 1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.10.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee of each series of Securities by mailing written notice of
such an event by first-class mail, postage prepaid, to the Holders of Registered
Securities of such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected are then
Outstanding, notice of such resignation shall be given to the Holders thereof,
(i) by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, the City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing notice to those Holders of
Unregistered Securities who have furnished their names and addresses to the
Trustee for such purpose within the two years preceding the giving of such
notice.
SECTION 6.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with respect to such
series, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the trustee ceasing
to act shall, subject to Section 10.4, pay over to the successor trustee all
monies at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act as such shall, nevertheless, retain a prior claim
upon all property or funds held or collected by it to secure any amounts then
due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6. 10 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939.
Upon acceptance of appointment by a successor trustee for a series of
Securities as provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered Securities of such
series at their last addresses as they shall appear in the Security register, or
(ii) in the case of Holders of Unregistered Securities of such series, publish
such notice once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered Securities of
such series who have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice. Each such notice
shall include the name of the successor trustee for such series and the address
of the Corporate Trust Office. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9. If the Issuer fails to provide such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.8 and Section 310(a) of the Trust Indenture
Act of 1939, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the Issuer.
If and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of claims
against the Issuer (or any such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice thereof to the Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect to one or more
series of Securities, the Trustee may upon receipt of a Company Order appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and the
Issuer shall provide notice of such appointment to all Holders of Securities of
such series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. The Issuer agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder or his agent
or proxy of any instrument, or the authority of such an agent or proxy to
execute such instrument, may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
Person executing the same. The fact of the holding by any Holder of an
Unregistered Security of any series, and the identifying number of such Security
and the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be issued in respect
of one or more Unregistered Securities of one or more series specified therein.
The holding by the Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the Security
of such series specified in such certificate shall be produced by some other
Person, or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount and numbers of
Securities of any series held by the Person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner which the
Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior to surrender of a
Security for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer, or the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security register as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer, or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Issuer, the Trustee
nor any agent of the Issuer, or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration or transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past Default with
respect to the Securities of such series in accordance with Section 5.10, (ii)
consent to any supplemental indenture in accordance with Section 8.2 of this
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder (if this Indenture should expressly provide for such waiver).
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and any such Persons, shall be entitled to waive any such
past Default, consent to any such supplemental indenture or waive compliance
with any such term, condition or provision or revoke any such waiver or consent,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of any (i) notice of Default, (ii) declaration under
5.1, (iii) request to institute proceedings referred to in Section 5.6 or (iv)
direction referred to in Section 5.9, in each case with respect to Securities of
such series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction or to revoke the same, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable expiration date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to the Issuer
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer when authorized by Board Resolutions (which resolutions may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to a
Company Order) and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another entity to the Issuer or
successive successions, and the assumption by the successor entity of the
respective covenants, agreements and obligations of the Issuer under this
Indenture or any supplemental indenture;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions or to surrender any right, power or
option conferred by this Indenture on the Issuer as its Board of Directors and
the Trustee shall consider to be for the protection or benefit of the Holders of
all or any series of Securities or Coupons of any series (and if such covenants
are to be for the benefit of less than all series of Securities, stating that
such covenants are being added solely for the benefit of such series), and to
make the occurrence, or the occurrence and continuance, of a Default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions in regard to matters or
questions under this Indenture or any supplemental indenture as the Issuer may
deem necessary or desirable, provided, that no action under this clause (d)
shall adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any series or
of the Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3;
(f) to make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.10; and
(h) to provide for uncertificated Securities in addition to
certificated Securities, so long as such uncertificated Securities are in
registered form for United States federal income tax purposes.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution or Resolutions (which Resolutions may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to a Company Order) and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding, any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) change the
final maturity of any Security or change the time for payment of any installment
of interest thereon, or reduce the principal amount thereof, or reduce the rate
(or alter the method of computation) of interest thereon, or reduce (or alter
the method of computation of) any amount payable on redemption or repayment
thereof or change the time for payment thereof, or make the principal thereof
(including any amount in respect of original issue discount), or interest
(together with any additional amounts payable with respect to, and pursuant to
the terms of, such Security) thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, provided, no consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and the
Issuer to execute supplemental indentures pursuant to Section 8.1(e) of this
Indenture, or (b) reduce the aforesaid percentage of principal amount of
Securities of any series the consent of the Holders of which is required for any
such supplemental indenture to less than a majority, or reduce the percentage of
Securities of such series necessary to consent to waive any past Default under
this Indenture to less than a majority, or modify any of the provisions of this
Section or Section 5.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived, in
each case, without the consent of the Holder of each Security so affected.
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 of Coupons
appertaining to such Securities, or which modifies the rights of Holders of
Securities of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by copies of Board Resolutions
of the Issuer (which resolutions may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders and other documents, if any, required
by Section 7.1 the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties, immunities or liabilities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall give notice thereof setting forth in general terms the substance of such
supplemental indenture, (i) to the Holders of the Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee for such purpose within two years preceding the
giving of such notice, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg). Any failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, and the Holders of Securities
of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments.
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture and that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Issuer covenants that it
will not merge with or into or consolidate with any Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets
to any Person and the Issuer shall not permit any Person to consolidate with or
merge into the Issuer or sell, convey, transfer, lease or otherwise dispose of
all or substantially all of its assets to the Issuer, unless (i) either the
Issuer (in the case of a merger) shall be the continuing corporation, or the
successor entity or the Person which acquires by sale, conveyance, transfer,
lease or disposition all or substantially all of the assets of the Issuer (if
other than the Issuer) shall be a corporation, limited liability company or
partnership organized under the laws of the United States of America or any
State thereof or the District of Columbia, and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee, executed and
delivered to the Trustee by such entity pursuant to Article Eight hereof, all of
the payment obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto and the due
and punctual performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed; and (ii) immediately after giving effect to
such merger, consolidation, sale, conveyance, transfer, lease or disposition and
treating any Debt which becomes an obligation of the Issuer as a result of such
transaction as having been incurred by the Issuer at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer, lease or disposition, and
following such an assumption by the successor entity, such successor entity
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein. Except in the case of conveyance by way of lease,
when the successor entity assumes all obligations of the Issuer hereunder and
the provisions of Section 9.1 have been complied with, all obligations and
covenants of the Issuer hereunder or under the Securities shall terminate.
Such successor entity may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers of the Issuer to
the Trustee for authentication, and any Securities together with any Coupons
appertaining thereto which such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued together with any Coupons appertaining thereto shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or disposition such changes in phraseology and form (but not in substance)
may be made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any sale, conveyance, transfer or disposition (other than
a conveyance by way of lease) covered by this Section 9.2, the Issuer (or any
successor entity which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel prepared
in accordance with Section 11.5 as conclusive evidence that any such
consolidation, merger, sale, transfer, lease, disposition or conveyance, and any
such assumption, and any such liquidation or dissolution complies with the
applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than any Securities of such series
and Coupons appertaining thereto which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.9), as and
when the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities and Coupons appertaining thereto of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment) of principal of
and interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation (x) shall have become due and payable or (y) are by their terms
to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption, and (ii) the Issuer shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the amount identified in
subsection (x), (y) or (z) below (other than monies repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4), specifically
pledged as security for and dedicated solely to the benefit of the Holders of
the Securities of such series and Coupons appertaining thereto, (x) cash in an
amount or (y) in the case of any series of Securities the payments on which may
only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash not later than one day before the due date of payments in
respect of the Securities, or (z) a combination thereof, sufficient (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
or interest is due and payable (whether at maturity or through operation of a
mandatory sinking fund other than any redemption or repayment at the option of
the Holder); and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, all of the Securities of
such series and any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to such Securities
and Coupons shall cease to be of further effect (except as to (i) rights of
registration of transfer, and exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional redemption, if any,
(ii) substitution of mutilated, defaced or apparently destroyed, lost or stolen
Securities or Coupons, (iii) rights of the Holders of Securities and Coupons
appertaining thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates therefor (but
not upon acceleration) or the Redemption Date or repayment date therefor, as the
case may be and remaining rights of Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations and immunities of the Trustee
hereunder, including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Sections 3.2, 3.3 and 3.4),
and the Trustee, on demand of the Issuer accompanied by an Officers' Certificate
and an Opinion of Counsel, which complies with Section 11.5, stating that the
provisions of this Section have been complied with and at the cost and expense
of the Issuer, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. In addition, in connection with
the satisfaction and discharge pursuant to clause (c)(i)(y) above, the Trustee
shall give notice to the Holders of Securities of such satisfaction and
discharge. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.6 shall survive.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution of the
Issuer, Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 2.3. In addition to discharge of the Indenture pursuant to Section
10.1(A), in the case of any such series of Securities the exact or maximum
amounts (including the currency of payment) of principal and interest due on
which can be determined at the time of making the deposit referred to in Clause
10.1(B)(x)(a) below: (x) the Issuer shall be deemed to have paid and discharged
the entire indebtedness on all Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to
in Clause 10.1(B)(x)(a) below, and the provisions of this Indenture with respect
to the Securities of such series and Coupons appertaining thereto shall no
longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto to receive from
the property so deposited payments of principal thereof and interest thereon on
the original stated due dates therefor (but not on acceleration) or the
Redemption Date or repayment date therefor, as the case may be, and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer and the rights of the Holders of the
Securities under Sections 3.2, 3.3 and 3.4), (hereinafter "defeasance"), and the
Trustee, at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if the Issuer notifies the Trustee
that the provisions of this Section 10.1(B) are being complied with solely to
effect a defeasance and if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments on which
may only be in Dollars, U.S. Government Obligations, maturing as to principal
and interest at such times and in such amounts as will insure (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
and interest is due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise other than any redemption or
repayment at the option of the Holder);
(b) no Default or with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1(d) and (e) are concerned, at any time during the period ending on
and including the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period);
(c) such defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939 with
respect to any securities of the Issuer;
(d) such defeasance shall not result in a breach or violation of,
or constitute a Default under, this Indenture or any Securities of such series
or any other agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect, and such opinion shall confirm, (i) that, based on the fact that
(x) the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has been a change
in the applicable federal income tax law, in either case, to the effect that
Holders of the Securities of such series and the Coupons appertaining thereto
will not recognize income, gain or loss, other than with respect to the interest
earned on the amounts defeased, for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred; and
(ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other sums then
payable hereunder by the Issuer and the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with.
(C) The Issuer shall be released from its obligations under Article
Nine and any other covenants specified pursuant to Section 2.3 with respect to
the Securities of any series and any Coupons appertaining thereto on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities of the applicable series, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Article or any such covenant, whether
directly or indirectly by reason of any reference elsewhere herein to such
Article or any such covenant or by reason of any reference in such Article to
any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder of
this Indenture and such Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection (C) of this
Section 10.1:
(a) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
and Coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payment on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and
in such amounts as will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government Obligations) the
availability of cash in an amount or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable (whether at maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise, other than any redemption or repayment at
the option of the Holder);
(b) no Default or Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 5.1(d) and (e) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(c) such covenant defeasance will not result in a breach or
violation of, or constitute a default under, this Indenture, or any Securities
issued hereunder or any agreement or instrument to which the Issuer is a party
or by which it is bound;
(d) such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
of 1939;
(e) such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize income, gain or loss, other than
with respect to the interest earned on the amounts defeased, for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the covenant defeasance contemplated by this provision
have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4 all monies and securities deposited with
the Trustee pursuant to Section 10.1 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series and of Coupons appertaining thereto for the payment or redemption of
which such monies or securities have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such monies
or securities need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Securities of any series or the defeasance thereof, all monies then held by any
paying agent under the provisions of this Indenture with respect to such series
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years. Any monies or U.S. Government Obligations deposited
with or paid to the Trustee or any paying agent for the payment of the principal
of and interest on any Security of any series or Coupons attached thereto and
not applied but remaining unclaimed for two years after the date upon which such
principal and interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such monies shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to monies
deposited with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first class mail to Holders
of such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series the
Holders of which have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, shall at the
expense of the Issuer, mail by first class mail to such Holders at such
addresses, and (c) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer cause to be published once, in an Authorized Newspaper
in the City of New York and once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg)
notice, that such monies remain unpaid and that, after a date specified therein,
which shall not be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse shall be had for the
payment of the principal of, or interest on any Security or any Coupon
appertaining thereto, for any claim based thereon, or otherwise in respect
thereof, or based on or in respect of this Indenture or any indenture supplement
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Issuer or any successor corporation, either
directly or through the Issuer, or any successor corporation, whether by virtue
of constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance of such
Security and any Coupons appertaining thereto and as part of the consideration
for the issue thereof, expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or in
Coupons appertaining thereto, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto and their successors and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns (whether by merger, consolidation or otherwise), whether
so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities or Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to McMoRan Exploration Co., 1615 Poydras Street, New
Orleans, Louisiana 70112, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office, Attention: Corporate
Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities, notice shall be (i) mailed to those Holders of Unregistered
Securities who have filed their names and addresses for this purpose with the
Trustee within the two preceding years of giving such notice, with such notice
being sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in such filing and (ii) published at
least once in an Authorized Newspaper in the City of New York, and at least once
in an Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg). In any case where notice to
such Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Except as provided in Sections 3.5 and 12.4, each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate or providing
such opinion has read such covenant or condition and the definitions relating
thereto, (b) 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, (c) 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 (d) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any Security shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment, and no interest shall accrue for
the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies or conflicts
with the duties imposed by any of Sections 310 through 317, inclusive, of the
Trust Indenture Act of 1939 or with another provision hereof which is required
to be included by any of Section 310 through 317, inclusive, or by operation of
Section 318(c) thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This Indenture
and each Security shall each be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
In case any provision of 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 thereby.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate.
The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture including without limitation any
determination contemplated in Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption. Notice of redemption to the
Holders of Registered Securities to be redeemed as a whole or in part at the
option of the Issuer shall be given in the manner provided in Section 11.4, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities. Notice of redemption to all Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.7, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part, shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
Redemption Date, the applicable Redemption Price, and, if the Redemption Price
was required to be calculated according, or pursuant to a formula or by
reference to the value or price of any one or more commodities, currencies,
indices, instruments or other securities, the method for such calculation and
the basis for such Redemption Price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to a mandatory or optional sinking fund, or both, if such
be the case, that interest accrued to the Redemption Date will be paid as
specified in said notice and that on and after said Redemption Date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the Redemption Date all
the Securities of such series to be redeemed at the appropriate Redemption
Price, together with accrued interest to and including the Redemption Date. If
less than all Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the Redemption Date an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption or subject to compliance with
conditions precedent, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any series shall relate,
in the case of any Security 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. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has
been complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place stated in such notice at the applicable
Redemption Price, together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together with interest
accrued to said Redemption Date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
Coupons, if any, appertaining thereto shall be void, and such Securities shall
cease from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities to be redeemed except the right to receive the
applicable Redemption Price thereof and unpaid interest to and including the
Redemption Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
Redemption Price, together with interest accrued thereon, to and including the
Redemption Date; provided that any payment of interest becoming due on or prior
to the Redemption Date shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, registered as such on the
relevant Regular Record Date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
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 of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such
Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities for
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate of the Issuer delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series to be so credited has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver or cause to be delivered such Officers' Certificate
and Securities (subject to the parenthetical clause in the second preceding
sentence) specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency or ECU) if the Issuer
shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in Section
12.2 and subject to the limitations in Section 12.4, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be practicable, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of
the Securities of such series (or portions thereof) so selected. The Trustee,
in the name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund monies held on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other monies, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund monies or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any monies in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 5.10
or the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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 ______________________, 2000.
McMoRan EXPLORATION CO.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Name:
Title:
____________________________, as Trustee
By:
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
Name:
Title
STATE OF LOUISIANA
PARISH OF ORLEANS
On this _____ day of _________________, 2000 before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ______________; that he is a
______________________ of McMoRan Exploration Co., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____ day of _____________________, 2000, before me personally
came _______________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at _________________; that he is a _____________
of ________________, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
Exhibit 4.5
MCMORAN EXPLORATION CO., Issuer
and
_______________________, Trustee
SUBORDINATED
INDENTURE
Dated as of _____________________, 2000
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined 1
Authenticating Agent 1
Authorized Newspaper 2
Authorized Signatory 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company Order 2
Corporate Trust Office 2
Coupon 2
Debt 2
Default 3
Defeasance 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Guarantee 3
Holder, Holder of Securities, Securityholder 3
Indebtedness 4
Indenture 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 5
Original Issue Discount Security 5
Outstanding 5
Periodic Offering 5
Person 5
principal 6
Redemption Date 6
Redemption Price 6
Registered Global Security 6
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Senior Indebtedness 6
Stated Maturity 7
Trade Payables 7
Trust Indenture Act of 1939 7
Trustee 7
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate of Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in Series 9
SECTION 2.4 Authentication and Delivery of Securities 11
SECTION 2.5 Execution of Securities 14
SECTION 2.6 Certificate of Authentication 14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 15
SECTION 2.8 Registration, Transfer and Exchange 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 19
SECTION 2.10 Cancellation of Securities; Disposition Thereof 20
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 21
SECTION 3.2 Offices for Payments, etc. 21
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee 22
SECTION 3.4 Paying Agents 23
SECTION 3.5 Written Statement to Trustee 24
SECTION 3.6 Corporate Existence 24
SECTION 3.7 Luxembourg Publications 24
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER AND THE
TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders 24
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists 25
SECTION 4.3 Reports by the Issuer 25
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default 26
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt 29
SECTION 5.3 Application of Proceeds 31
SECTION 5.4 Suits for Enforcement 32
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings 32
SECTION 5.6 Limitations on Suits by Securityholders 32
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default 33
SECTION 5.9 Control by Securityholders 33
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances 34
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default 35
SECTION 6.2 Certain Rights of the Trustee 36
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof 37
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. 37
SECTION 6.5 Monies Held by Trustee 37
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim 37
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. 38
SECTION 6.8 Persons Eligible for Appointment as Trustee 38
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee 38
SECTION 6.10 Acceptance of Appointment by Successor Trustee 40
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee 41
SECTION 6.12 Preferential Collection of Claims Against the Issuer 41
SECTION 6.13 Appointment of Authenticating Agent 42
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders 43
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities 43
SECTION 7.3 Holders to be Treated as Owners 44
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding 44
SECTION 7.5 Right of Revocation of Action Taken 45
SECTION 7.6 Record Date for Consents and Waivers 45
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders 46
SECTION 8.2 Supplemental Indentures With Consent of Securityholders 47
SECTION 8.3 Effect of Supplemental Indenture 49
SECTION 8.4 Documents to Be Given to Trustee 49
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures 49
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions 49
SECTION 9.2 Successor Entity Substituted 50
SECTION 9.3 Opinion of Counsel to Trustee 51
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture 51
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities 55
SECTION 10.3 Repayment of Monies Held by Paying Agent 55
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years 55
SECTION 10.5 Indemnity for U.S. Government Obligations 56
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability 56
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders 56
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture 57
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders 57
SECTION 11.5 Officers' Certificates and Opinions of Counsel,
Statements to Be Contained Therein 57
SECTION 11.6 Payments Due on Saturdays, Sundays and Legal Holidays 58
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 59
SECTION 11.8 New York Law to Govern; Separability 59
SECTION 11.9 Counterparts 59
SECTION 11.10 Effect of Headings 59
SECTION 11.11 Securities in a Foreign Currency or in ECU 59
SECTION 11.12 Judgment Currency 60
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 60
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities Called for Redemption 62
SECTION 12.4 Exclusion of Certain of Securities from Eligibility for
Selection for Redemption 63
SECTION 12.5 Mandatory and Optional Sinking Funds 63
ARTICLE THIRTEEN - SUBORDINATION
SECTION 13.1 Agreement to Subordinate 65
SECTION 13.2 Payments to Securityholders 65
SECTION 13.3 Subrogation 67
SECTION 13.4 Authorization by Securityholders 68
SECTION 13.5 Notice to Trustee 68
SECTION 13.6 Trustee's Relation to Senior Indebtedness 69
SECTION 13.7 No Impairment of Subordination 69
TESTIMONIUM 70
SIGNATURES AND SEALS 70
ACKNOWLEDGMENTS 71
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the Indenture
to be dated as of ___________________, 2000 between McMoRan Exploration Co. and
____________________, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture
THIS INDENTURE, dated as of __________________________, 2000 by and
between McMoRan Exploration Co. (the "Issuer"), a Delaware corporation, and
____________________, a ______________________ corporation, as trustee (the
"Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized by the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement of the Issuer according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
are defined in the Securities Act and referred to in the Trust Indenture Act of
1939 (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States which are in
effect on the date or time of any determination. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section
6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of London, will, if practicable, be the Financial Times
(London Edition) and, in the case of Luxembourg, will, if practicable, be the
Luxemburger Wort) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in the City of New York, London or
Luxembourg as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Authorized Signatory" means any of the chairman of the Board of
Directors, the president, any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "Vice
President"), the treasurer or any assistant treasurer or the secretary or any
assistant secretary of any Person.
"Board of Directors" of any Person means the Board of Directors of
such Person, or any committee of such Board duly formed and authorized to act on
its behalf.
"Board Resolution" of any Person means a copy of one or more
resolutions, certified by the secretary or an assistant secretary of such Person
to have been duly adopted or consented to by the Board of Directors of such
Person and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day that in the
city (or in any cities, if more than one) in which amounts are payable, as
specified in the form of such Security, which is not a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, the body performing such duties on such date.
"Company Order" means a written statement, request or order of the
Issuer which is signed in the Issuer's name by the chairman of the Board of
Directors, the president, any executive vice president, any senior vice
president or any vice president of the Issuer.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at .
"Coupon" means any interest coupon appertaining to a Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in Section 10.1.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Registered
Global Securities, the Person designated as the Depositary by the Issuer
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series;
provided that any Person that is a Depositary hereunder must be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means The European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the Security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indebtedness" of any Person means at any date, without duplication
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) all obligations of such Person as a lessee
under capital leases, (vi) all Indebtedness of others secured by a lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person, (vii) all Indebtedness of others Guaranteed by such Person.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy, insolvency,
reorganization or similar law in any applicable jurisdiction.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issuer" means McMoRan Exploration Co., a Delaware corporation, and,
subject to Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officers' Certificate" means a certificate signed by the chairman
of the board or the president or any vice president (whether or not designated
by a number or numbers or a word or words added before or after the title "Vice
President") and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 11.5, if and to
the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Issuer or such other legal
counsel who may be satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 11.5, if and to the extent required
hereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the Issue Date of such Security or (b) the Issue Date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means, with respect to a Security, the date of
original issuance thereof.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding", when used with reference to Securities of any series
issued hereunder, shall, subject to the provisions of Section 7.4, mean, as of
any particular time, all Securities of such series authenticated and delivered
by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article 10 hereof shall not be applicable), or portions
thereof, for the payment or redemption of which monies or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer (if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereto, are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.9 (unless proof satisfactory to the Trustee is
presented that any of such Securities is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"principal" whenever used with reference to the Securities of any
series or any portion thereof, shall be deemed to include "and premium, if any".
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer, which Security shall be without Coupons.
"Regular Record Date" for interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3, or if no such date is established,
if such Interest Payment Date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such Interest Payment
Date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such Regular Record Date is a Business Day.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer", when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, the Secretary, the
Treasurer, or any other officer of the Trustee customarily performing corporate
trust functions.
"SEC Reports" shall have the meaning set forth in Section 4.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities of any
series, authenticated and delivered under this Indenture.
"Security Registrar" means the Trustee or any successor Security
Registrar appointed by the Issuer.
"Senior Indebtedness" means all Indebtedness of the Issuer (other
than the Securities) including principal and interest (including, without
limitation, any interest that would accrue but for the filing of a petition
initiating any proceeding referred to in Section 13.2 hereof) on such
Indebtedness, whether outstanding on the date of the first issuance of any
Securities or created, incurred or assumed thereafter, unless such Indebtedness,
by its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to, or pari passu with, the Securities;
provided, that the term Senior Indebtedness shall not include (a) any
Indebtedness of the Issuer which is without recourse to the Issuer when incurred
without respect to any election under Section 1111(b) of Title 11, United States
Code, (b) any Indebtedness of the Issuer to an affiliate of the Issuer and any
refinancing thereof, (c) Indebtedness to any employee of the Issuer and (d)
Trade Payables.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with respect to any
installment of interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on which such
installment of interest is due and payable.
"Trade Payables" means accounts payable for any other indebtedness
or monetary obligations to trade creditors created or assumed by the Issuer or
any subsidiary of the Issuer in the ordinary course of business in connection
with the obtaining of materials or services.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is 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 the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of the issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, issued hereunder shall be substantially in such form and bear
such legends (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions of the Issuer (as set forth in a
Board Resolution of the Issuer or, to the extent established pursuant to rather
than set forth in a Board Resolution of the Issuer, an Officers' Certificate of
the Issuer detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities of the Issuer are
issued as permitted by Section 2.11, the form thereof also shall be established
as provided in the preceding sentence.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
____________________________, Trustee
By:
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
______________________________, Trustee
By:
As Authenticating Agent
By:
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with the Securities of each other series, but
all Securities hereunder shall be subordinate and junior in right of payment, to
the extent and manner set forth in Article 13, to all Senior Indebtedness of the
Issuer. There shall be established in or pursuant to one or more Board
Resolutions of the Issuer (and to the extent established pursuant to rather than
set forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Date on which any such interest shall be payable and (in
the case of Registered Securities) the Regular Record Date for any interest
payable on any Interest Payment Date and/or the method by which such rate or
rates or Regular Record Date or Dates shall be computed or determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.2);
(7) the right, if any, of the Issuer or any Holder to redeem or
cause to be redeemed Securities of the series, in whole or in part, at its
option and the period or periods within which, the price or prices at which, and
the manner in which (if different from the provisions of Article Twelve hereof),
and any terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise and/or the method by which
such price or prices shall be determined;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices (and/or the method by which such price or prices
shall be determined) at which, the period or periods within which and the manner
in which (if different from the provisions of Article Twelve hereof) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of
that series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made and the manner in which the exchange rate with respect to
such payments shall be determined;
(13) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to the value or
price of any one or more commodities, currencies or indices, the manner in which
such amounts will be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities and, if so, the Depositary therefor and the form of
any legend in addition or in lieu of that provided in Section 2.4 to be borne by
such Registered Global Security) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions and procedures
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon, if other than provided in Section 2.8, and the
terms upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa if other than provided in
Section 2.8;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series to Holders, or certain
Holders, thereof in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts (and the terms of
any such option);
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the Securities
of such series;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants set forth herein (including any defined terms
relating thereto);
(19) provisions, if any, granting specific rights to Holders or
Securities of such series upon the occurrence of certain events as may be
specified;
(20) the term and condition, upon which and the manner in which
Securities of the series may be defeased or defeasible if different from the
provisions of Article Ten;
(21) whether the Securities will be issued as global Securities
and, if other than as provided in Section 2.8, the terms upon which such global
Securities may be exchanged for definitive Securities;
(22) offices at which presentation and demands may be made and
notices be served, if other than the Corporate Trust Office; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining thereto, if any,
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon the execution
and delivery of this Indenture, or from time to time thereafter, Securities,
including Coupons appertaining thereto, if any, may be executed by the Issuer
and delivered to the Trustee for authentication together with the applicable
documents referred to below in this section, and the Trustee shall thereupon
authenticate and deliver such Securities and Coupons appertaining thereto, if
any, to or upon the order of the Issuer (contained in the Company Order referred
to below in this section) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by such
Company Order, without any further action by the Issuer. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Company Order or procedures authorized by such Company Order.
If provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and
4 below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) a Company Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or interest rate or rates
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery of
Securities pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral or electronic instructions shall be
promptly confirmed in writing, and (e) after the original issuance of the first
Security of such series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for original issuance will be
deemed to be a certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities and stating that the form or forms and terms of the
Securities and Coupons, if any, have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of Counsel of
the Issuer, or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel of the Issuer, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of a Periodic Offering, certain
terms of the Securities have been established pursuant to a Board Resolution of
the Issuer, an Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be established pursuant
to procedures set forth in a Company Order shall have been established, all such
terms will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under the Securities and the
Coupons, if any, will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Issuer or to the best of
counsel's knowledge any agreement or other instrument binding upon the Issuer
that is material to the Issuer or, to the best of such counsel's knowledge but
without any independent investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer and no
consent, approval or authorization of any governmental body or agency is
required for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities and
Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, he has relied, to the extent he deems proper, upon certificates
of officers of the Issuer and any of its subsidiaries and certificates of public
officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its Board of Directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all or a
portion of the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in accordance with this Section 2.4 and the Company Order with respect to
such series, authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all or a portion of the Securities of such series
issued and not yet canceled or exchanged to be represented by such Registered
Global Securities, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or a nominee thereof
or a custodian therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "This Security is a
Registered Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture."
SECTION 2.5 Execution of Securities. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman of the Board of Directors, the president, any vice president (whether
or not designated by a number or numbers or a word or words added before or
after the title "Vice President") or the Treasurer of the Issuer, under its
corporate seal (except in the case of Coupons) which may, but need not be,
attested. Such signature may be the manual or facsimile signature of the
present or any future such chairman or officers. The corporate seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Security or Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such Person as, at
the actual date of the execution of such Security or Coupon, shall be the proper
officer of the Issuer, although at the date of the execution and delivery of
this Indenture any such Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form set forth
in Section 2.2, executed by the Trustee by the manual signature of one of its
authorized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
and Coupons, if any, appertaining thereto so authenticated have been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the chairman or the officers
of the Issuer executing the same may determine with the approval of the Trustee,
as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or Resolutions or indenture supplemental hereto referred to in
Section 2.3 or, if not so specified, each such Unregistered Security shall be
dated as of the date of issuance of the first Unregistered Security of such
series to be issued. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any Regular Record Date applicable to
such series with respect to any Interest Payment Date for such series shall be
entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Registered Security subsequent
to such Regular Record Date and prior to such Interest Payment Date, except if
and to the extent the Issuer shall default in the payment of the interest due on
such Interest Payment Date for such series, in which case such defaulted
interest shall then cease to be payable to the Holder on such Regular Record
Date by virtue of having been such Holder and shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. Interest on any Unregistered Securities which is due on any Interest
Payment Date shall be paid to the Holder of the applicable Coupon appertaining
to such Unregistered Security
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register in which, subject to such
reasonable regulations as it may prescribe, it will provide for the registration
of Registered Securities of each series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee. There may not be more
than one register for each series of Securities.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of such series, Stated Maturity,
interest rate and original issue date in any authorized denominations and of a
like aggregate principal amount and tenor.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged for a
Security of the same series, of like tenor, in authorized denominations and in
an equal aggregate principal amount upon surrender of such Security at an office
or agency to be maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, and the Issuer shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, the Security or Securities
which the Holder making the exchange shall be entitled to receive bearing a
number or other distinguishing symbol not contemporaneously outstanding.
Subject to the foregoing, (i) a Registered Security of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a
Registered Security or Securities of the same series; (ii) if the Securities of
any series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, Unregistered Securities may be
exchanged for a Registered Security or Securities of the same series, but a
Registered Security may not be exchanged for an Unregistered Security or
Securities; and (iii) if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.3, any such Unregistered Security or Securities may be exchanged for
an Unregistered Security or Securities of the same series; provided that in
connection with the surrender of any Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default must be
surrendered with the Securities being exchanged. If the Holder of an
Unregistered Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Unregistered Securities are accompanied by payment in funds acceptable to the
Issuer in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Issuer
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any paying agent harmless. If thereafter
the Holder of such Security shall surrender to any paying agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive from the Issuer the amount of such payment;
provided, however, that, except as otherwise provided in Section 3.2, interest
represented by Coupons shall be payable only upon the presentation and surrender
of those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case an Unregistered Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series of like tenor after the close of business at such officer
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any subsequent
record date and the before the opening of business at such office or agency on
such subsequent date for the payment of interest in default, such Unregistered
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or subsequent date for payment, as the case may be, and interest or
in interest in default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Unregistered Security, but
will be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
canceled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee,
duly executed by the Holder or his attorney duly authorized in writing.
Each Registered Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Registered
Global Security or a nominee thereof, and each such Registered Global Security
shall constitute a single security for all purposes of this Indenture.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed, (b)
any Securities selected, called or being called for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed, (c) to register the transfer of or exchange any
Security if the Holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Security in whole or in part, except the portion of
such Security not required to be repurchased or (d) to exchange any Unregistered
Security so selected for redemption, except that such Unregistered Security may
be exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or is no longer eligible because it ceased to be a clearing agency
registered under the Exchange Act or any other applicable statute or regulation,
the Issuer shall appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Registered Securities be represented by one or more Registered
Global Securities shall no longer be effective and the Issuer will execute, and
the Trustee, upon receipt of an Officers' Certificate of the Issuer for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, of like tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of 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 Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be canceled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
None of the Issuer, the Trustee, any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
All Securities issued upon any transfer or exchange of Securities shall be
valid and legally binding obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
foregoing (any of which, other than the Issuer, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result in
adverse federal income tax consequences to the Issuer (such as, for example, the
inability of the Issuer to deduct from its income, as computed for federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be apparently destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so apparently destroyed, lost
or stolen and, if applicable, with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange for the Security to which a mutilated, defaced, destroyed, lost
or stolen Coupon appertained with Coupons appertaining thereto corresponding to
the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of apparent destruction, loss or theft,
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the case of a
mutilated or defaced Security or Coupon, the applicant for a substitute Security
or Coupon shall surrender such mutilated or defaced Security or Coupon to the
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless
from all risks, however remote, arising as a result of such payment and, in
every case of apparent destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is apparently destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the apparently destroyed,
lost or stolen Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, or apparently destroyed, lost or stolen Securities and
Coupon and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, repurchase, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall dispose of canceled Securities and
Coupons held by it and deliver a certificate of disposition to the Issuer unless
the Issuer shall direct that canceled Securities be returned to it. If the
Issuer shall acquire any of the Securities or Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities issued hereunder that it
will duly and punctually pay or cause to be paid the principal of and interest
on, each of the Securities of such series (together with any additional amounts
payable with respect to and pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in the
Securities of such series and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons attached (together
with any additional amounts payable with respect to such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable with respect
to such Security) shall be paid, as to the installments of interest evidenced by
Coupons attached thereto, if any, only upon presentation of such Securities for
notation thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any additional amounts payable with respect
to such Securities) shall be payable only to or upon the written order of the
Holders thereof entitled thereto and, at the option of the Issuer, may be paid
by wire transfer (subject to the procedures of the paying agent) or by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or remain
Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Registered Securities of each series may
be surrendered for payment and where the Registered Securities of each series
may be surrendered for registration of transfer or exchange as is provided in
this Indenture.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
office or agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be surrendered for payment or exchange. No payment on
or exchange of any Unregistered Security or Coupon will be made upon surrender
of such Unregistered Security or Coupon at an office or agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in Dollars at each
agency maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto, or
this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the location
of any such office or agency and of any change of location thereof. The Issuer
hereby initially designates the Corporate Trust Office of the Trustee maintained
in the City of New York as the office or agency for each such purpose to be
carried out in New York. The Issuer shall designate an office or agency outside
the United States for each such purpose relating to Unregistered Securities
prior to the issuance of any Unregistered Securities. In case the Issuer shall
fail to maintain any such office or agency or shall fail to provide such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of the Security
Registrar in which, subject to such reasonable regulations as it may prescribe,
the Issuer will provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transferring Securities as herein
provided.
The Issuer may from time to time designate one or more additional offices
or agencies where the Securities of any series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain the agencies
provided for in the first three paragraphs of this Section 3.2. The Issuer will
give to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable,
(c) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent, and
(d) that it will in all respects comply with the provisions of the
Trust Indenture Act of 1939 applicable to such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, such sum to be
held as provided in the Trust Indenture Act of 1939, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Issuer will promptly notify the Trustee of
any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or with respect to this Indenture or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before March 31 in each year (beginning with March 31, ____) a
brief certificate (which need not comply with Section 11.5) from the Issuer,
signed by its principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the performance by
the signer of his duties as an officer of the Issuer, he would normally have
knowledge of any Default or non-compliance by the Issuer in the performance or
fulfillment of any covenant, agreement or condition of the Issuer, contained in
this Indenture, stating whether or not he has knowledge of any such Default or
non-compliance and, if so, specifying each such Default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises; provided that the
Issuer shall not be required to preserve any such right or franchise if the
Issuer shall determine that the preservation thereof is no longer desirable in
the conduct of its business and that the loss thereof is not disadvantageous in
any material respect to the Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 5.11, 6.9, 6.10, 8.2, 10.4, 12.2 or 12.4, the
party making such publication in the City of New York and London shall also, to
the extent that notice is required to be given to Holders of Securities of any
series by applicable Luxembourg law or stock exchange regulation, as evidenced
by any Officers' Certificate delivered to such party, make a similar publication
in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities each covenants and agrees that it will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Securities of each
series:
(a) semiannually and not more than 15 days after each Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security Registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished for such series.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to the Trustee as provided in Section 4.1, (ii) received by the
Trustee in its capacity as Security Registrar for such series, if so acting, and
(iii) filed with it within two preceding years pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939. The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under any series of the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act of 1939.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that none of the Issuer, the Trustee or
any agent of any of the Issuer or the Trustee shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act of 1939 at the times and in the manner provided pursuant to
such Act, provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
("SEC Reports") shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after _________
of each year, commencing with the first _____ following the first issuance of
Securities pursuant to Section 2.4, if required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such ______ with respect to
any of the events specified in said Section 313(a) which may have occurred since
the later of the immediately preceding ________________________ and the date of
this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act and Section 5.11 hereof at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Section 313(c) of the Trust Indenture Act
of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities of any series are listed, with the Commission and with the
Issuer. The Issuer will promptly notify the Trustee when the Securities of any
series are listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default," with respect to Securities of any series wherever
used herein, means one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
of the Securities of such series or any Coupon appertaining thereto (together
with any additional amounts payable with respect to such Securities) as and when
the same shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become due and
payable either at their Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of an optional
redemption by the Holders of such Securities, the amount thereof shall be in
excess of $_________ or the equivalent thereof in any currency or composite
currency; or
(c) failure on the part of the Issuer duly to comply with, observe
or perform any of the other covenants or agreements on the part of the Issuer
contained in, or provisions of, the Securities of any series or this Indenture
(other than a covenant or agreement which is not applicable to the Securities of
such series), but only if such default shall not have been remedied for a period
of 60 days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of such series of Securities; or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Issuer in an involuntary case
or proceeding under any applicable Insolvency Law or (B) a decree or order
adjudging the Issuer a bankrupt or insolvent under an applicable Insolvency Law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or liquidation of the affairs
of the Issuer and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(e) the commencement by the Issuer of a voluntary case or
proceeding under any applicable Insolvency Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Issuer to the entry of a decree or order for relief in respect of the Issuer in
an involuntary case or proceeding under any applicable Insolvency Law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Issuer or the filing by the Issuer of a petition, answer or consent seeking
reorganization or relief under any applicable Insolvency Law, or the consent by
the Issuer to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Issuer or of any substantial part of the property of
the Issuer or the making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action (which
shall involve the passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(f) failure by the Issuer to make any payment at maturity (or upon
any redemption), including any applicable grace period, in respect of
indebtedness, which term as used herein means obligations (other than the
Securities of such series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Debt") in an amount in excess of
$__________ or the equivalent thereof in any other currency or composite
currency and such failure shall have continued for a period of thirty days after
written notice thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series affected thereby;
(g) a default with respect to any Debt, which default results in
the acceleration of Debt in an amount in excess of $__________ or the equivalent
thereof in any other currency or composite currency without such Debt having
been discharged or such acceleration having been cured, waived, rescinded or
annulled for a period of thirty days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
such series affected thereby; or
(h) any other Event of Default provided for with respect to
Securities of that series in the supplemental indenture under which such series
is issued or in the terms of Securities of such series;
provided that if any such failure, default or acceleration referred to in
clauses (f), (g) and (h) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof, and any
acceleration under this Section 5.1 resulting solely therefrom, shall be deemed
likewise to have been thereupon cured, waived, rescinded or annulled without
further action on the part of either the Trustee or any of the Securityholders.
If an Event of Default (other than those specified in Section 5.1(d) or (e))
with respect to one or more series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(each series voting as a separate class) by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of the affected series, and the interest
accrued thereon, if any (together with any additional amounts payable with
respect to such Securities), to be due and payable immediately, and upon any
such declaration, the same shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or (e) occurs, the entire principal
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, (together with any additional
amounts payable with respect to such Securities) shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, (together with any additional amounts
payable with respect to such Securities) upon all the Securities of such series
and the principal of any and all Securities of each such series which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest (together with any additional amounts
payable with respect to such Securities), at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series (or the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of
each such series or of all the Securities, as the case may be, (each series
voting as a separate class), then Outstanding, by written notice to the Issuer
and the Trustee, may waive all defaults with respect to such series and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with accrued interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt. The
Issuer covenants that (a) in case Default shall be made in the payment of any
installment of interest on any of the Securities of any series when such
interest shall have become due and payable and such Default shall have continued
for a period of 30 days or (b) in case Default shall be made in the payment of
all or any part of the principal of any of the Securities of any series when the
same shall have become due and payable, whether upon the Stated Maturity of the
Securities of such series or upon any redemption or by declaration or
otherwise, other than a Default that is the result of an optional redemption by
the Holders of Securities of any series, the amount of which is not in excess of
$__________ or the equivalent thereof in any currency or composite currency,
unless such Default shall have continued for a period of 60 days after giving a
notice with respect thereto under Section 5.1(c), then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all such Securities of such series, and such Coupons, if any, for
principal, or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Holders, whether or not
the principal of and interest on Securities of such series be overdue.
If an Event of Default occurs and is continuing, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity to protect and enforce
its rights and the rights of the Holders by such appropriate judicial proceeding
as the Trustee may deem most effectual to protect and enforce any such rights,
and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against the Issuer or any
other obligor upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other obligor upon the
Securities of such series, wherever situated the monies adjudged or decreed to
be payable.
In the case of any judicial proceeding relating to the Issuer or any other
obligor upon the Securities of such series, or the property or creditors of the
Issuer or any such obligor, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In addition, unless
prohibited by applicable law and regulations, the Trustee shall be entitled and
empowered to vote on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceeding or a Person providing
similar functions in comparable proceedings.
The Trustee shall be authorized to collect and receive any monies or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and of the
Trustee on their behalf, and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
series, may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such series or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements, advances and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities of such series
or Coupons appertaining thereto in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect of which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities, parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such monies on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of the same series, of like tenor, in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to the
Securities of such series in respect of which monies have been collected,
including any and all amounts due the Trustee under Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which monies have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which monies have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal; and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such monies
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding, judicial or otherwise, at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless (i) such Holder previously
shall have given to the Trustee written notice of a continuing Event of Default
as hereinbefore provided, (ii) the Holders of not less than 25% in aggregate
principal amount of the Securities of such affected series then Outstanding,
each series treated as a separate class, shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby; (iii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceedings; and (iv) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the Holder of every Security or
Coupon with every other Holder of the Securities of such series or Coupons and
the Trustee, that no one or more Holders of Securities of such series shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on (together with any additional
amounts payable with respect to and pursuant to the terms of such Securities)
such Security or Coupon and any interest in respect of a Default in the payment
of any such amounts, on or after the respective due dates expressed in such
Security or Coupon or Redemption Dates provided for therein or to institute suit
for the enforcement of any such payment rights on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 2.9 and 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
or Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of any series affected at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee by this Indenture with respect to or
for the benefit of such Securities of such series; provided that such direction
shall not be otherwise than in accordance with applicable law and the provisions
of this Indenture and provided further that (subject to the provisions of
Section 6. 1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal liability or if the
Trustee in good faith by its board of directors or the executive committee
thereof shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of
the acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding with respect to which an Event
of Default shall have occurred and be continuing may on behalf of the Holders of
all the Securities of such series waive any past Default or Event of Default
hereunder with respect to the Securities of such series and its consequences,
except a Default (a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security affected.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon. In
the case of any such waiver, the Issuer, the Trustee and the Holders of all such
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such affected
series in the manner and to the extent provided in Section 4.4(c), unless such
defaults shall have been cured before the mailing or publication of such notice
(the term "default" or "defaults" for the purposes of this Section 5.11 being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit other
than the Trustee of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit including the Trustee,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series, and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a particular series has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity from the Issuer against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction.
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed),
and any Board Resolution of the Issuer may be evidenced to the Trustee by a copy
thereof certified by the secretary or assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc, The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and, subject to Section 6.12 and Section 310(b) of the Trust Indenture Act
of 1939 may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the provisions of Section
10.4 hereof, all monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any monies received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including but not limited to the costs and expenses of
defending itself against or investigating any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of
or interest on particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. At no time shall the Trustee be an obligor, or directly
or indirectly, control, be controlled by, or under the common control with any
obligor upon any Securities issued hereunder. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.8 or Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor by the Issuer or
by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee with respect
to such series by delivering to the Trustee so removed, to the successor trustee
so appointed and to the Issuer the evidence provided for in Section 7. 1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.10.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee of each series of Securities by mailing written notice of
such an event by first-class mail, postage prepaid, to the Holders of Registered
Securities of such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected are then
Outstanding, notice of such resignation shall be given to the Holders thereof,
(i) by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, the City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing notice to those Holders of
Unregistered Securities who have furnished their names and addresses to the
Trustee for such purpose within the two years preceding the giving of such
notice.
SECTION 6.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with respect to such
series, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the trustee ceasing
to act shall, subject to Section 10.4, pay over to the successor trustee all
monies at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act as such shall, nevertheless, retain a prior claim
upon all property or funds held or collected by it to secure any amounts then
due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6. 10 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee for a series of
Securities as provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered Securities of such
series at their last addresses as they shall appear in the Security register, or
(ii) in the case of Holders of Unregistered Securities of such series, publish
such notice once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered Securities of
such series who have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice. Each such notice
shall include the name of the successor trustee for such series and the address
of the Corporate Trust Office. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9. If the Issuer fails to provide such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.8 and Section 310(a) of the Trust Indenture
Act of 1939, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the Issuer.
If and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of claims
against the Issuer (or any such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice thereof to the Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect to one or more
series of Securities, the Trustee may upon receipt of a Company Order appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and the
Issuer shall provide notice of such appointment to all Holders of Securities of
such series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. The Issuer agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder or his agent
or proxy of any instrument, or the authority of such an agent or proxy to
execute such instrument, may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
Person executing the same. The fact of the holding by any Holder of an
Unregistered Security of any series, and the identifying number of such Security
and the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be issued in respect
of one or more Unregistered Securities of one or more series specified therein.
The holding by the Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the Security
of such series specified in such certificate shall be produced by some other
Person, or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount and numbers of
Securities of any series held by the Person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner which the
Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior to surrender of a
Security for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer, or the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security register as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer, or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Issuer, the Trustee
nor any agent of the Issuer, or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration or transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past Default with
respect to the Securities of such series in accordance with Section 5.10, (ii)
consent to any supplemental indenture in accordance with Section 8.2 of this
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder (if this Indenture should expressly provide for such waiver).
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and any such Persons, shall be entitled to waive any such
past Default, consent to any such supplemental indenture or waive compliance
with any such term, condition or provision or revoke any such waiver or consent,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of any (i) notice of Default, (ii) declaration under
5.1, (iii) request to institute proceedings referred to in Section 5.6 or (iv)
direction referred to in Section 5.9, in each case with respect to Securities of
such series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction or to revoke the same, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable expiration date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to the Issuer
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 11.4..
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer when authorized by Board Resolutions (which resolutions may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to a
Company Order) and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another entity to the Issuer or
successive successions, and the assumption by the successor entity of the
respective covenants, agreements and obligations of the Issuer under this
Indenture or any supplemental indenture;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions or to surrender any right, power or
option conferred by this Indenture on the Issuer as its Board of Directors and
the Trustee shall consider to be for the protection or benefit of the Holders of
all or any series Securities or Coupons of any series (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such
covenants are being added solely for the benefit of such series), and to make
the occurrence, or the occurrence and continuance, of a Default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions in regard to matters or
questions under this Indenture in any supplemental indenture as the Issuer may
deem necessary or desirable, provided, that no action under this clause (d)
shall adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any series or
of the Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3;
(f) to make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.10; and
(h) to provide for uncertificated Securities in addition to
certificated Securities, so long as such uncertificated Securities are in
registered form for United States federal income tax purposes.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution or Resolutions (which Resolutions may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to a Company Order) and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding, any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) change the
final maturity of any Security or change the time for payment of any installment
of interest thereon, or reduce the principal amount thereof, or reduce the rate
(or alter the method of computation) of interest thereon, or reduce (or alter
the method of computation of) any amount payable on redemption or repayment
thereof or change the time for payment thereof, or make the principal thereof
(including any amount in respect of original issue discount), or interest
(together with any additional amounts payable with respect to, and pursuant to
the terms of, such Security) thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, provided, no consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and the
Issuer to execute supplemental indentures pursuant to Section 8.1(e) of this
Indenture, or (b) reduce the aforesaid percentage of principal amount of
Securities of any series the consent of the Holders of which is required for any
such supplemental indenture to less than a majority, or reduce the percentage of
Securities of such series necessary to consent to waive any past Default under
this Indenture to less than a majority, or modify any of the provisions of this
Section or Section 5.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived, in
each case, without the consent of the Holder of each Security so affected.
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 of Coupons
appertaining to such Securities, or which modifies the rights of Holders of
Securities of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by copies of Board Resolutions
of the Issuer (which resolutions may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders and other documents, if any, required
by Section 7.1 the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties, immunities or liabilities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall give notice thereof setting forth in general terms the substance of such
supplemental indenture, (i) to the Holders of the Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee for such purpose within two years preceding the
giving of such notice, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg). Any failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, and the Holders of Securities
of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments.
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture and that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Issuer covenants that it
will not merge with or into or consolidate with any Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets
to any Person and the Issuer shall not permit any Person to consolidate with or
merge into the Issuer or sell, convey, transfer, lease or otherwise dispose of
all or substantially all of its assets to the Issuer, unless (i) either the
Issuer (in the case of a merger) shall be the continuing corporation, or the
successor entity or the Person which acquires by sale, conveyance, transfer,
lease or disposition all or substantially all of the assets of the Issuer (if
other than the Issuer) shall be a corporation, limited liability company or
partnership organized under the laws of the United States of America or any
State thereof or the District of Columbia, and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee, executed and
delivered to the Trustee by entity corporation pursuant to Article Eight hereof,
all of the payment obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto and the due
and punctual performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed; and (ii) immediately after giving effect to
such merger, consolidation, sale, conveyance, transfer, lease or disposition and
treating any Debt which becomes an obligation of the Issuer as a result of such
transaction as having been incurred by the Issuer at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer, lease or disposition, and
following such an assumption by the successor entity, such successor entity
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein. Except in the case of conveyance by way of lease,
when the successor entity assumes all obligations of the Issuer hereunder and
the provisions of Section 9.1 have been complied with, all obligations and
covenants of the Issuer hereunder or under the Securities shall terminate.
Such successor entity may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers of the Issuer to
the Trustee for authentication, and any Securities together with any Coupons
appertaining thereto which such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued together with any Coupons appertaining thereto shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or disposition such changes in phraseology and form (but not in substance)
may be made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any sale, conveyance, transfer or disposition (other than
a conveyance by way of lease) covered by this Section 9.2, the Issuer (or any
successor entity which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel prepared
in accordance with Section 11.5 as conclusive evidence that any such
consolidation, merger, sale, transfer, lease, disposition or conveyance, and any
such assumption, and any such liquidation or dissolution complies with the
applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than any Securities of such series
and Coupons appertaining thereto which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.9), as and
when the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities and Coupons appertaining thereto of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment) of principal of
and interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation (x) shall have become due and payable or (y) are by their terms
to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption, and (ii) the Issuer shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the amount identified in
subsection (x), (y) or (z) below (other than monies repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4) or specifically
pledged as security for and dedicated solely to the benefit of the Holders of
the Securities of such series and Coupons appertaining thereto, (x) cash in an
amount, (y) in the case of any series of Securities the payments on which may
only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash not later than one day before the due date of payments in
respect of the Securities, or (z) a combination thereof, sufficient (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
or interest is due and payable (whether at maturity or through operation of a
mandatory sinking fund other than any redemption or repayment at the option of
the Holder); and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, all of the Securities of
such series and any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to such Securities
and Coupons shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional redemption, if any,
(ii) substitution of mutilated, defaced or apparently destroyed, lost or stolen
Securities or Coupons, (iii) rights of the Holders of Securities and Coupons
appertaining thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates therefor (but
not upon acceleration) or the Redemption Date or repayment date therefor, as the
case may be and remaining rights of Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations and immunities of the Trustee
hereunder, including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Sections 3.2, 3.3 and 3.4),
and the Trustee, on demand of the Issuer accompanied by an Officers' Certificate
and an Opinion of Counsel, which complies with Section 11.5, stating that the
provisions of this Section have been complied with and at the cost and expense
of the Issuer, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. In addition, in connection with
the satisfaction and discharge pursuant to clause (c)(i)(y) above, the Trustee
shall give notice to the Holders of Securities of such satisfaction and
discharge. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities,
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.6 shall survive.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution of the
Issuer, Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 2.3. In addition to discharge of the Indenture pursuant to Section
10.1(A), in the case of any such series of Securities the exact or maximum
amounts (including the currency of payment) of principal and interest due on
which can be determined at the time of making the deposit referred to in Clause
10.1(B)(x)(a) below: (x) the Issuer shall be deemed to have paid and discharged
the entire indebtedness on all Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to
in Clause 10.1(B)(x)(a) below, and the provisions of this Indenture with respect
to the Securities of such series and Coupons appertaining thereto shall no
longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto to receive from
the property so deposited payments of principal thereof and interest thereon on
the original stated due dates therefor (but not on acceleration) or the
Redemption Date or repayment date therefor, as the case may be, and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer and the rights of the Holders of the
Securities under Sections 3.2, 3.3 and 3.4), (hereinafter "defeasance"), and the
Trustee, at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if the Issuer notifies the Trustee
that the provisions of this Section 10.1(B) are being complied with solely to
effect a defeasance and if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments on which
may only be in Dollars, U.S. Government Obligations, maturing as to principal
and interest at such times and in such amounts as will insure (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
and interest is due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise other than any redemption or
repayment at the option of the Holder);
(b) no Default or with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1(d) and (e) are concerned, at any time during the period ending on
and including the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period);
(c) such defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939 with
respect to any securities of the Issuer;
(d) such defeasance shall not result in a breach or violation of,
or constitute a Default under, this Indenture or any Securities of such series
or any other agreement or instrument to which the Issuer is a party or by which
it is bound;
(e) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect, and such opinion shall confirm, (i) that, based on the fact that
(x) the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has been a change
in the applicable federal income tax law, in either case, to the effect that
Holders of the Securities of such series and the Coupons appertaining thereto
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and, other than with respect to
the interest earned on the amounts defeased, will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred;
and (ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other sums then
payable hereunder by the Issuer and the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with.
(C) The Issuer shall be released from its obligations under Article
Nine and any other covenants specified pursuant to Section 2.3 with respect to
the Securities of any series and any Coupons appertaining thereto on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities of the applicable series, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Article or any such covenant, whether
directly or indirectly by reason of any reference elsewhere herein to such
Article or any such covenant or by reason of any reference in such Article to
any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder of
this Indenture and such Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection (C) of this
Section 10.1:
(a) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
and Coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payment on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and
in such amounts as will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government Obligations) the
availability of cash in an amount or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable (whether at maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise, other than any redemption or repayment at
the option of the Holder);
(b) no Default or Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 5.1(d) and (e) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(c) such covenant defeasance will not result in a breach or
violation of, or constitute a default under, this Indenture, or any Securities
issued hereunder or any agreement or instrument to which the Issuer is a party
or by which it is bound;
(d) such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act of
1939;
(e) such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize income, gain or loss, other than
with respect to the interest earned on the amounts defeased, for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the covenant defeasance contemplated by this provision
have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4 all monies and securities deposited with
the Trustee pursuant to Section 10.1 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series and of Coupons appertaining thereto for the payment or redemption of
which such monies or securities have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such monies
or securities need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Securities of any series or the defeasance thereof, all monies then held by any
paying agent under the provisions of this Indenture with respect to such series
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years. Any monies or U.S. Government Obligations deposited
with or paid to the Trustee or any paying agent for the payment of the principal
of and interest on any Security of any series or Coupons attached thereto and
not applied but remaining unclaimed for two years after the date upon which such
principal and interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such monies shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to monies
deposited with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first class mail to Holders
of such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series the
Holders of which have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, shall at the
expense of the Issuer, mail by first class mail to such Holders at such
addresses, and (c) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer cause to be published once, in an Authorized Newspaper
in the City of New York and once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg)
notice, that such monies remain unpaid and that, after a date specified therein,
which shall not be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse shall be had for the
payment of the principal of, or interest on any Security or any Coupon
appertaining thereto, for any claim based thereon, or otherwise in respect
thereof, or based on or in respect of this Indenture or any indenture supplement
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Issuer or any successor corporation, either
directly or through the Issuer, or any successor corporation, whether by virtue
of constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance of such
Security and any Coupons appertaining thereto and as part of the consideration
for the issue thereof, expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or in
Coupons appertaining thereto, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto and their successors and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns (whether by merger, consolidation or otherwise), whether
so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities or Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to McMoRan Exploration Co., 1615 Poydras Street, New
Orleans, Louisiana 70112, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office, Attention: Corporate
Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities, notice shall be (i) mailed to those Holders of Unregistered
Securities who have filed their names and addresses for this purpose with the
Trustee within the two preceding years of giving such notice, with such notice
being sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in such filing and (ii) published at
least once in an Authorized Newspaper in the City of New York, and at least once
in an Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg). In any case where notice to
such Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Except as provided in Sections 3.5 and 12.4, each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate or providing
such opinion has read such covenant or condition and the definitions relating
thereto, (b) 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, (c) 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 (d) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any Security shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment, and no interest shall accrue for
the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies or conflicts
with the duties imposed by any of Sections 310 through 317, inclusive, of the
Trust Indenture Act of 1939 or with another provision hereof which is required
to be included by any of Section 310 through 317, inclusive, or by operation of
Section 318(c) thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This Indenture
and each Security shall each be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
In case any provision of 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 thereby.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate.
The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture including without limitation any
determination contemplated in Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption. Notice of redemption to the
Holders of Registered Securities to be redeemed as a whole or in part at the
option of the Issuer shall be given in the manner provided in Section 11.4, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities. Notice of redemption to all Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.7, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part, shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
Redemption Date, the applicable Redemption Price, and, if the Redemption Price
was required to be calculated according, or pursuant to a formula or by
reference to the value or price of any one or more commodities, currencies,
indices, instruments or other securities, the method for such calculation and
the basis for such Redemption Price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to a mandatory or optional sinking fund, or both, if such
be the case, that interest accrued to the Redemption Date will be paid as
specified in said notice and that on and after said Redemption Date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the Redemption Date all
the Securities of such series to be redeemed at the appropriate Redemption
Price, together with accrued interest to and including the Redemption Date. If
less than all Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the Redemption Date an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption or subject to compliance with
conditions precedent, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any series shall relate,
in the case of any Security 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. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place stated in such notice at the applicable
Redemption Price, together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together with interest
accrued to said Redemption Date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
Coupons, if any, appertaining thereto shall be void, and such Securities shall
cease from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities to be redeemed except the right to receive the
applicable Redemption Price thereof and unpaid interest to and including the
Redemption Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
Redemption Price, together with interest accrued thereon, to and including the
Redemption Date; provided that any payment of interest becoming due on or prior
to the Redemption Date shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, registered as such on the
relevant Regular Record Date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
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 of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such
Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities for
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate of the Issuer delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series to be so credited has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver or cause to be delivered such Officers' Certificate
and Securities (subject to the parenthetical clause in the second preceding
sentence) specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency or ECU) if the Issuer
shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in Section
12.2 and subject to the limitations in Section 12.4, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be practicable, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of
the Securities of such series (or portions thereof) so selected. The Trustee,
in the name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund monies held on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other monies, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund monies or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any monies in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 5.10
or the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Agreement to Subordinate. The Issuer covenants and
agrees, and each Holder of a Security or Coupon issued hereunder, by his
acceptance thereof, likewise covenants and agrees, that all Securities and
Coupons shall be issued subject to the provisions of this Article; and each
Person holding any Security or Coupon, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the principal
of and interest on all Securities and Coupons issued hereunder shall, to the
extent and in the manner herein set forth, be subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness, and that the
subordination is for the benefit of the holders of the Senior Indebtedness.
SECTION 13.2 Payments to Securityholders. As to each series of
Securities and Coupons, if any, issued hereunder, in the event (a) of any
insolvency or bankruptcy proceedings, or any receivership, dissolution, winding-
up, total or partial liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property, whether voluntary
or involuntary, or (b) that (i) a default shall have occurred with respect to
the payment of principal of or interest on or other monetary amounts due and
payable with respect to any Senior Indebtedness, or (ii) there shall have
occurred an event of default (other than a default in the payment of principal
or interest or other monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined in such Senior Indebtedness or in the instrument under
which the same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof, and such default or event of default shall not
be cured and was continued beyond the period of grace, if any, in respect
thereof, and such default or event of default shall not have been waived or
shall not have ceased to exist, or (c) separately with respect to each series of
Securities, that the principal of and accrued interest on such Securities shall
have been declared due and payable pursuant to Section 5.1 and such declaration
shall not have been rescinded and annulled as provided in Section 5.1, then in
the case of any of the events set forth in subsection (a), (b) or (c) above, the
holders of all Senior Indebtedness shall first be entitled to receive payment in
full of all amounts due or to become due thereon, or provision shall be made, in
accordance with the terms of such Senior Indebtedness, for such payment in money
or money's worth, before the Holders of such series of Securities or Coupons are
entitled to receive a payment on account of the principal of or interest on the
indebtedness evidenced by such series of Securities or of such Coupons,
including, without limitation, any payments made pursuant to Article Twelve, or
any cash payments to purchase such series of Securities at the option of the
Holders thereof.
Upon any such insolvency or bankruptcy proceeding, receivership,
dissolution, winding-up, total or partial liquidation, reorganization, or other
similar proceeding referred to in clause (a) of the immediately preceding
paragraph, any payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities and any Coupon or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by the Issuer or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution or, to the extent required by the next
succeeding paragraph, by the Holders of the Securities or any Coupons or the
Trustee, if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to pay all Senior
Indebtedness in full after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the Holders of the indebtedness evidenced by the
Securities or any Coupons (including any cash payments to repurchase such
Securities at the option of the Holders thereof) or to the Trustee under this
Indenture.
Each Securityholder hereby irrevocably authorizes and empowers (without
imposing any obligation on) the holders of the Issuer's Senior Indebtedness (or
any trustee or agent on behalf thereof), under the circumstances set forth in
the immediately preceding paragraph, to demand, sue for, collect and receive
every such payment or distribution described therein and give acquittance
therefor, to file claims and proofs of claims in any statutory or nonstatutory
proceeding, to vote the Issuer's Senior Indebtedness holder's ratable share of
the full amount of the Indebtedness represented by the Outstanding Securities
and Coupons in its sole discretion in connection with any resolution,
arrangement, plan of reorganization, compromise, settlement or extension and to
take all such other action (including, without limitation, the right to
participate in any composition of creditors and the right to vote such the
Issuer's Senior Indebtedness holders' ratable share of the Indebtedness
represented by the Outstanding Securities and Coupons at creditors' meetings for
the election of trustees, acceptances of plans and otherwise), in the name of
the Securityholder, as such the Issuer's Senior Indebtedness holder or its
representative may deem necessary or desirable for the enforcement of these
subordination provisions.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, prohibited by the foregoing provisions of this Section,
shall be received by the Trustee under this Indenture or the Holders of the
Securities or any Coupons before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms, then such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness; provided that the Trustee shall not be liable for any
payment prohibited by this Section 13.2 if the Trustee did not have knowledge
that such payment or distribution was prohibited pursuant to this Section.
For purposes of this Article only, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities or other Indebtedness of the Issuer or
any other corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the Securities or any Coupons) to the
payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such arrangement, reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such arrangement, reorganization or
readjustment. The consolidation of the Issuer with, or the merger of the Issuer
with or into, another corporation or the liquidation or dissolution of the
Issuer following the conveyance or transfer of all or substantially all of its
assets to another corporation upon the terms and conditions provided in Article
Nine shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Nine. Nothing in this Section shall apply to
claims of, or payments to, the Trustee under or pursuant to Article Six, except
as expressly provided therein. This Section shall be subject to the further
provisions of Section 13.5.
SECTION 13.3 Subrogation. Subject to the payment in full of all
Senior Indebtedness, the Holders of the Securities and any Coupons subject to
the provisions of Section 13.2 shall be subrogated (equally and ratably with the
holders of all obligations of the Issuer which by their express terms are
subordinated to Senior Indebtedness of the Issuer to the same extent as the
Securities are subordinated and which are entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until the principal of and interest on
such Securities and the amounts owed pursuant to any such Coupons shall be paid
in full; and, for the purpose of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of such Securities or any such Coupons or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of such Securities or any such Coupons or the Trustee on
their behalf shall, as between the Issuer, its creditors other than holders of
Senior Indebtedness and the Holders of such Securities or any such Coupons, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the Securityholders pursuant to the subrogation
provision of this Article, which would otherwise have been paid to the holders
of Senior Indebtedness, shall be deemed to be a payment by the Issuer to or for
the account of such Securities. The provisions of this Article are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Issuer, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and interest on the
Securities and the amounts owed pursuant to any Coupons as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights against the Issuer of the Holders of the
Securities and creditors of the Issuer other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Holder of any
Security or the Trustee on his behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Issuer received upon the exercise
of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article, the Trustee, subject to the provisions of Sections 6.1 and 6.2,
and the Holders of the Securities and any Coupons shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
insolvency, bankruptcy, dissolution, winding-up, liquidation, arrangement or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities and of any Coupons, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 13.4 Authorization by Securityholders. Each Holder of a
Security or Coupon by his acceptance thereof authorizes the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
SECTION 13.5 Notice to Trustee. The Issuer shall give prompt written
notice to the Trustee and to any paying agent of any fact known to the Issuer
which would prohibit the making of any payment of monies to or by the Trustee or
any paying agent in respect of the Securities or any Coupons pursuant to the
provisions of this Article. Regardless of anything to the contrary contained in
this Article or elsewhere in this Indenture, the Trustee shall not be charged
with knowledge of the existence of any Senior Indebtedness or of any default or
event of default with respect to any Senior Indebtedness or of any other facts
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities or any Coupons, unless and until the Trustee shall
have received notice in writing (which may be by telegram, telecopy or other
similar writing) at its Corporate Trust Office to that effect signed by an
officer of the Issuer, or by a holder or agent of a holder of Senior
Indebtedness who shall have been certified by the Issuer or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
agent, or by the trustee under any indenture pursuant to which Senior
Indebtedness shall be outstanding, and, prior to the receipt of any such written
notice, the Trustee shall, subject to Sections 6.1 and 6.2, be entitled to
assume that no such facts exist; provided that if on a date at least two
Business Days prior to the date upon which by the terms hereof any such monies
shall become payable for any purpose (including, without limitation, the payment
of the principal of or interest on any Security) the Trustee shall not have
received with respect to such monies the notice provided for in this Section,
then, regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Regardless of anything to the contrary herein (but subject, in the case of
clause (a) of this paragraph, to the second paragraph of Section 13.2), nothing
shall prevent (a) any payment by the Issuer or the Trustee to the
Securityholders of amounts in connection with a redemption of Securities if (i)
notice of such redemption has been given pursuant to Article Twelve prior to the
receipt by the Trustee of written notice as aforesaid, and (ii) such notice of
redemption is given not earlier than 60 days before the Redemption Date, or (b)
any payment by the Trustee to the Securityholders of amounts deposited with it
pursuant to Section 10.1, provided, that, in the case of Section 10.1(B), the
applicable Securities are deemed to have been paid and discharged, and in the
case of Section 10.1(A), the Trustee shall not have received, by at least two
Business Days prior to the date of execution of instruments acknowledging the
satisfaction of and discharge of this Indenture with respect to the applicable
Securities, the notice provided in the preceding paragraph.
Subject to Sections 6.1 and 6.2, the Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee on behalf of any such holder. In the event that 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 distribution pursuant to this Article, 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, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, 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 13.6 Trustee's Relation to Senior Indebtedness. The Trustee
and any agent of the Issuer or the Trustee shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness and nothing in Section 6.13 or
elsewhere in this Indenture shall deprive the Trustee or any such agent of any
of its rights as such holder. Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 6.6.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Sections 6.1 and 6.2, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall in good faith pay over or deliver to
Holders of Securities, the Issuer or any other Person monies or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 13.7 No Impairment of Subordination. No right of any present
or future holder 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 Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
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 _____________________, 2000.
McMoRan EXPLORATION CO.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Name:
Title:
____________________________, as Trustee
By:
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
Name:
Title
STATE OF LOUISIANA
PARISH OF ORLEANS
On this ____ day of ______________________, 2000 before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ______________; that he is a
______________________ of McMoRan Exploration Co., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
______________________________
Notary Publi
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ____ day of ______________________, 2000, before me personally
came _______________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at _________________; that he is a _____________
of ________________, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
Exhibit 4.7
CERTIFICATE OF DESIGNATIONS
OF
[CONVERTIBLE] [EXCHANGEABLE] PREFERRED STOCK, SERIES ___
(Par Value $0.01 Per Share)
OF
McMoRan EXPLORATION CO.
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
(If convertible or exchangeable, then insert such provisions below as are
consistent with the terms of the security designated in the applicable
Prospectus Supplement.)
We, the undersigned, being a Senior Vice President and the Secretary,
respectively, of McMoRan Exploration Co. (hereinafter called the "corporation"),
a corporation organized and existing under and by virtue of the provisions of
the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST. The Amended and Restated Certificate of Incorporation of the
corporation authorizes the issuance of shares of Preferred Stock, par value
$0.01 per share, in series, with variations, as may be determined by the Board
of Directors of the corporation prior to the issue thereof, as to the
designation of each particular series and as to certain of the rights,
preferences and limitation of shares of each such series.
SECOND. The Board of Directors of the corporation, acting by Unanimous
Written Consent dated ____________, and a Special Committee thereof, pursuant to
authority specifically granted to it by such Board of Directors, at a meeting
duly called and held on _____________, duly adopted the following resolutions
authorizing the creation and issuance of a series of Preferred Stock to be known
as "$______ [Convertible] [Exchangeable] Preferred Stock."
RESOLVED, that the Board of Directors, pursuant to authority vested in it
by the provisions of the Amended and Restated Certificate of Incorporation of
the corporation, hereby authorize the issue of a series of Preferred Stock of
the corporation and hereby fixes the number, designation, preferences, rights
and limitations thereof in addition to those set forth in the Amended and
Restated Certificate of Incorporation as follows:
1. Designation. (a) ___________ shares of Preferred Stock of the
corporation are hereby constituted as a series of Preferred Stock designated as
"$____ [Convertible] [Exchangeable] Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all respect with the
other shares of this Series except as to the dates from and after which
dividends thereon shall be cumulative. The Board of Directors is authorized to
increase or decrease (but not below the number of shares of this Series then
outstanding) the number of shares of this Series.
(b) Shares of this Series which have been redeemed [converted into
_________] [exchanged into ___________________] or purchased by the corporation
shall be cancelled, and shall revert to authorized but unissued Preferred Stock
undesignated as to series, and may be reissued as a part of this Series or may
be reclassified and reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, all subject to
the conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issue of such
series of Preferred Stock.
2. Dividends. (a) The holders of shares of this Series shall be
entitled to receive, but only out of funds legally available therefor, cash
dividends. Such dividends shall be paid when, as and if declared by the Board
of Directors on the first day of ___________, __________, _________ and
__________ in each year commencing __________________ (each such date being
referred to herein as a "Dividend Payment Date") to holders of record on the
record date determined by the Board of Directors in advance of the payment of
each particular dividend. [Such dividends shall be cumulative from the date of
issue of the shares of this Series.]
(b) So long as any shares of this Series shall be outstanding, the
corporation shall not, unless full cumulative dividends for all past dividend
periods shall have been paid or declared and set apart for payment upon all
outstanding shares of this series and the shares of any other class or series of
Preferred Stock, (i) declare, pay or set apart any amounts for dividends on, or
make any other distribution in cash or other property in respect of, the Common
Stock or any other stock of the corporation, ranking junior to this Series as to
dividends or distribution of assets upon liquidation, dissolution or winding up
of the affairs of the corporation (the Common Stock and any such other stock
being herein referred to as "Junior Stock"), other than a dividend payable
solely in Junior Stock, (ii) purchase, redeem or otherwise acquire for value any
shares of Junior Stock, directly or indirectly, other than as a result of
reclassification of Junior Stock, or the exchange or conversion of one Junior
Stock for or into another Junior Stock, or other than through the use of
proceeds of a substantially contemporaneous sale of other Junior Stock, or (iii)
make any payment on account of, or set aside money for, a sinking or other like
fund for the purchase, redemption or other acquisition for value of any shares
of Junior Stock.
(c) If the funds available for the payment of dividends are insufficient
to pay in full the dividends payable on all outstanding shares of this Series
and shares of any other series of Preferred Stock, the total available funds to
be paid in partial dividends on the shares of such other series of Preferred
Stock and the shares of this Series shall be divided among this Series and such
other series of Preferred Stock in proportion to the aggregate amounts of
dividends accrued and unpaid with respect to this Series and such other series
of Preferred Stock. Accruals of dividends shall not bear interest.
3. Dividend Rate. The Dividend Rate on the shares of this Series for
the period from the date of original issue thereof to and including
_______________, and for each Dividend Period thereafter shall be $________ per
annum. The term "Dividend Period," as used herein, means, with respect to any
Dividend Payment Date, the period commencing on the day following the
immediately preceding Dividend Payment Date to and including such Dividend
Payment Date.
4. Redemption. (a) The shares of this Series shall not be redeemable
prior to _____________. Thereafter, the corporation, at its option, may redeem
the shares of this Series, in whole or in part, at any time or from time to
time, upon notice given as hereinafter specified, at the following redemption
prices per share if redeemed during the twelve month period commencing on
_______________ of the year indicated:
Year Price
and at $_____ per share thereafter, plus, in each case, an amount equal to all
accrued and unpaid dividends on the shares being redeemed to and including the
date fixed for such redemption. Notwithstanding any provision of this Section 4
to the contrary, any accrued and unpaid dividends in respect of shares of this
Series to be redeemed shall be payable to the holder of record of such shares,
as determined on the relevant record date.
(b) Notice of redemption shall be mailed by the corporation by first
class mail, postage prepaid, not less than 15 nor more than 60 days before the
date fixed for redemption, to each transfer agent for the shares of this Series
to be redeemed and to each holder of record of such shares addressed to such
holder at his address shown on the registry books of the corporation. Such
notice of redemption shall set forth the date fixed for redemption, the number
of shares of this Series to be redeemed and, if less than all of the shares held
by such holder are to be redeemed, the number of shares to be redeemed from such
holder, the applicable redemption price and the place or places (including a
place in the Borough of Manhattan, The City of New York) at which stockholders
may obtain payment of such redemption price plus accrued dividends upon the
surrender of the certificates representing their shares. Failure to mail such
notice, or any defect therein or in the mailing thereof, to any particular
holder shall not affect the validity of the proceeding for the redemption of any
shares so to be redeemed from any other holder.
(c) If less than all the outstanding shares of this Series are to be
redeemed, the number of shares of this Series to be redeemed and the method of
effecting such redemption, whether by lot or pro rata, shall be as determined by
the Board of Directors.
(d) At any time after a notice of redemption has been given in the
manner prescribed herein and prior to the date fixed for redemption, the
corporation may deposit in trust, with a bank or trust company identified in the
notice of redemption having capital, surplus and undistributed profits
aggregating at least $50,000,000, an aggregate amount of funds sufficient for
such redemption (including dividends accrued on the shares of this Series called
for redemption to the date fixed for redemption) for immediate payment in the
appropriate amounts upon surrender of certificates for such shares. Any
interest accrued on such funds shall be paid to the corporation from time to
time. Such deposit in trust shall be irrevocable, except that any funds
deposited by the corporation which shall not be required for the redemption for
which they were deposited because of the exercise of rights of conversion
subsequent to the date of deposit shall be returned to the corporation
forthwith, and any funds deposited by the corporation which are unclaimed at the
end of two years from the date fixed for such redemption shall be paid over to
the corporation upon its request, and upon such repayment the holders of the
shares so called for redemption shall look only to the corporation for payment
of the appropriate amount.
(e) From and after the date of the deposit of trust funds for the
redemption of shares of this Series in accordance with the provisions of Section
4(d) hereof or, if no such deposit is made, from and after the date fixed for
redemption (unless the corporation shall default in making payment of the amount
payable upon such redemption), whether or not certificates for shares so called
for redemption have been surrendered by the holders thereof as described below,
dividends on the shares of this Series so called for redemption shall cease to
accrue, and such shares shall be deemed to be no longer outstanding, and all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the amount payable upon such redemption
and, up to the close of business on the date fixed for such redemption, the
right to convert such shares as set forth in Section 7 hereof) shall cease and
terminate. Upon surrender in accordance with the notice of redemption of the
certificates for any shares of this Series so redeemed (properly endorsed or
assigned for transfer if the Board of Directors shall so require and the notice
shall so state), the holder thereof shall be entitled to receive payment of the
redemption price plus an amount equal to all accrued and unpaid dividends as
aforesaid. If less than all of the shares represented by any such surrendered
certificate are redeemed, the corporation shall execute and deliver to the
holder thereof, or to his written order, a certificate or certificates
representing the unredeemed shares.
(f) In no event shall the corporation redeem less than all the
outstanding shares of this Series and shares of any other series of Preferred
Stock pursuant to this Section 4 unless full cumulative dividends for all past
dividend periods shall have been paid or declared and set apart for payment upon
all outstanding shares of this Series and the shares of such other series of
Preferred Stock.
(g) In connection with any redemption of shares of this Series, the
corporation may enter into an agreement with one or more investment bankers or
other purchasers for the purchase of the shares to be redeemed from the holders
thereof and the conversion of such purchased shares into shares of Common Stock
as provided in Section 7 hereof. Such agreement shall provide that the amount
to be paid by such purchasers to the holders of the shares of this Series to be
redeemed shall not be less than the redemption price for such shares together
with all accrued and unpaid dividends thereon to and including the date fixed
for redemption and may provide further than such amount be deposited in trust,
on or before the close of business on the date fixed for redemption, with a bank
or trust company designated by the corporation meeting the requirements set
forth in Section 4(e) hereof. Notwithstanding anything to the contrary
contained in this Section, the obligation of the corporation to pay the
redemption price of the shares of this Series to be redeemed, together with
accrued and unpaid dividends thereon to the date fixed for redemption, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any shares of this
Series to be redeemed that have not been duly surrendered for conversion by the
holders thereof may, at the option of the corporation, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in this Section 4(g) or in
Section 7 hereof surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the date fixed for redemption,
subject to payment of the above amount as aforesaid.
4. Voting Rights. (a) Except as otherwise provided by law, the holders
of shares of this Series shall not be entitled to vote on any matter or to
receive notice of, or to participate in, any meeting of the stockholders of the
corporation.
(b) In addition to any other vote required by law, the corporation shall
not (i) create, authorize or issue any series or class of Preferred Stock
ranking prior, either as to payment of dividends or distributions of assets upon
liquidation, dissolution or winding up, to this Series, or (ii) change the
preferences, rights or limitations with respect to this Series, in each case, if
such action would materially adversely affect the interests of the holders
thereof, without the affirmative vote of the holders of a majority of the
aggregate number of shares of this Series at the time outstanding, voting as a
separate class; provided, that nothing herein contained shall require such a
class vote in connection with any increase in the total number of authorized
shares of Common Stock or the creation, authorization or issuance of any Junior
Stock or any series of Preferred Stock ranking, as to dividends or distribution
of assets upon liquidation, dissolution or winding up of the affairs of the
corporation, on a parity with the shares of this Series and provided, further,
that no such vote of the holders of shares of this Series shall be required if,
at or prior to the time when the actions described in clause (i) or (ii) of this
Section 5(b) shall become effective, provision is made in accordance with
Section 4 hereof for the redemption of all shares of this Series at the time
outstanding.
6. Preference upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
corporation, after payment or provision for payment of the debts and other
liabilities of the corporation, the holders of shares of this Series shall be
entitled to receive, out of the remaining net assets of the corporation, the
amount of $_______ in cash for each share of this Series, plus an amount equal
to all dividends (whether or not earned or declared) accrued and unpaid on each
such share up to the date fixed for distribution, before any distribution shall
be made to or set apart for the holders of any Junior Stock. If, after payment
or provision for payment of the debts and other liabilities of the corporation,
the remaining net assets of the corporation are not sufficient to pay to the
holders of shares of this Series the full amount of their preference set forth
above, then the remaining net assets of the corporation shall be divided among
and paid to the holders of shares of this Series and holders of shares of any
stock of the corporation on a parity as to dividends and distribution of assets
upon liquidation, dissolution or winding up of the affairs of the corporation
ratably per share in proportion to the full per share amounts to which they
respectively are entitled. For purposes of this Section 6, a consolidation or
merger of the corporation with one or more other corporations or the sale of all
or substantially all of the assets of the corporation shall not be deemed to be
a voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the corporation.
Subject to the rights of the holders of shares of any series or class of
stock ranking prior to this Series and of the holders of shares of any stock of
the corporation on a parity as to dividends and distribution of assets upon
liquidation, dissolution or winding up of the affairs of the corporation, after
payment shall have been made in full to the holders of this Series as provided
in this Section 6, the holders of any Junior Stock shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and shares of
this Series shall not be entitled to share therein.
7. Conversion Privilege. (If applicable, insert conversion privilege
into shares of Common Stock or other securities or rights of the corporation)
8. Exchange. (If applicable, insert Exchange features.)
9. Notice of Certain Events. In case:
(a) the corporation shall declare a dividend (or any other
distribution) payable to the holders of Common Stock (otherwise than cash
dividends paid out of the earned surplus of the corporation and dividends
payable in Common Stock); or
(b) the corporation shall authorize the granting to the holders of
Common Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights or warrants; or
(c) the corporation shall authorize any reclassification or change
of the Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock or a change in par value, or from par value to no par
value, or from no par value to par value), or any consolidation or merger to
which the corporation is a party and for which approval of any stockholders of
the corporation is required, or the sale or conveyance of all or substantially
all the property or business of the corporation; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the corporation;
then, the corporation shall cause to be filed at the place or places maintained
for the purpose of conversion of shares of this Series as provided in Section 7
hereof, and shall cause to be mailed to each holder of shares of this Series, at
his address as it shall appear on the registry books of the corporation, as
promptly as possible but in any event 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
(i) a record is expected to be taken for the purpose of such dividend, expected
to be taken for the purpose of such dividend, distribution, rights, or warrants,
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, rights, or
warrants are to be determined, or (ii) such reclassification, change,
consolidation, merger, sale, transfer, conveyance, 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, transfer, conveyance, dissolution, liquidation or winding-up.
10. Taxes. The corporation 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 (a) certificates for shares of this Series on redemption of less
than all of the shares represented by any certificate for such shares
surrendered for redemption or (b) certificates for shares of Common Stock on
conversion of shares of this Series pursuant to Section 7 hereof; provided, that
the corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of certificates for
shares of this Series of Common Stock, as the case may be, in a name other than
that of the holder of shares of this Series to be redeemed or converted and no
such issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the corporation the amount of any such tax or has
established, to the satisfaction of the corporation, that such tax has been
paid. The corporation extends no protection with respect to any other taxes
imposed in connection with such redemption or conversion of shares of this
Series.
11. No Other Rights. The shares of this Series shall not have any
relative, participating, option or other special rights and powers other than as
set forth herein.
IN WITNESS WHEREOF, said McMoRan Exploration Co. has caused its corporate
seal to be hereunder affixed and this Certificate of Designations to be signed
by its Senior Vice President and Secretary as of this ______________.
McMoRan EXPLORATION CO.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Name:
Title:
Exhibit 4.9
McMoRan Exploration Co.
and
_____________________________________
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of __________________,
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Company" 1
"Corporate Office" 1
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York office" 2
"Receipt" 2
"record holder" 2
"Registrar" 2
"Securities Act" 2
"Stock" 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.03 Redemption, Exchange and Conversion of Stock 4
SECTION 2.04 Register of Transfer of Receipts 6
SECTION 2.05 Combination and Split-ups of Receipts 6
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock 7
SECTION 2.07 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock 7
SECTION 2.08 Lost Receipts, etc 8
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information 9
SECTION 3.02 Payment of Taxes or Other Governmental Charges 9
SECTION 3.03 Withholding 9
SECTION 3.04 Representations and Warranties as to Stock 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 10
SECTION 4.02 Distributions Other Than Cash 10
SECTION 4.03 Subscription Rights, Preferences or Privileges 10
SECTION 4.04 Notice of Dividends, Fixing of Record Date for
Holders of Receipts 11
SECTION 4.05 Voting Rights 11
SECTION 4.06 Changes Affecting Stock and Reclassification,
Recapitalization, etc 12
SECTION 4.07 Reports 12
SECTION 4.08 Lists of Receipt Holders 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Registrar 13
SECTION 5.02 Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company 13
SECTION 5.03 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company 14
SECTION 5.04 Resignation and Removal of the Depositary, Appointment of
Successor Depositary 15
SECTION 5.05 Corporate Notices and Reports 16
SECTION 5.06 Deposit of Stock by the Company 16
SECTION 5.07 Indemnification by the Company 16
SECTION 5.08 Fees, Charges and Expenses 16
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 17
SECTION 6.02 Termination 17
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 18
SECTION 7.02 Exclusive Benefits of Parties 18
SECTION 7.03 Invalidity of Provisions 18
SECTION 7.04 Notices 18
SECTION 7.05 Depositary's Agents 19
SECTION 7.06 Holders of Receipts Are Parties 19
SECTION 7.07 Governing Law 19
SECTION 7.08 Headings 19
TESTIMONIUM 20
SIGNATURES 20
EXHIBIT A 21
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _________________ among McMoRan
Exploration Co., a Delaware corporation, _____________________ , a
_____________banking corporation, as Depositary, and all holders from time to
time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of the Stock with the Depositary,
as agent for the beneficial owners of the Stock, for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form annexed as
Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit
Agreement.
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
"Certificate of Designations" shall mean the Certificate of Designations
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Company" shall mean McMoRan Exploration Co., a Delaware corporation,
and its successors.
"Corporate Office" shall mean the office of the Depositary in
________________. _______________ at which at any particular time its business
in respect of matters governed by this Deposit Agreement shall be
administered, which at the date of this Deposit Agreement is located at
______________________.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean _________________, as Depositary hereunder, and
any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the Receipts
executed and delivered hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each Depositary Share shall represent an interest in _____ of a
share of Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder
of a Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares, including the dividend,
conversion, exchange, voting and liquidation rights contained in the
Certificate of Designations, and to the benefits of all obligations and duties
of the Company in respect of the Stock under the Certificate of Designations
and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the office maintained by the Depositary in
the Borough of Manhattan, The City of New York, which at the date of this
Deposit Agreement is located at ___________________________.
"Receipt" shall mean a Depositary Receipt executed and delivered
hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"Record holder" or "Holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books maintained by or on
behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to register
ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's [ ].
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall be engraved
or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Stock or the Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any particular Receipts are
subject by reason of the date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect
as in the case of investment securities in general; provided, however, that
the Depositary may, notwithstanding any notice to the contrary, treat the
record holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement
and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may deposit such Stock under
this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a properly executed instrument of transfer
in form satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written order of the Company
or such holder, as the case may be, directing the Depositary to execute and
deliver to or upon the written order of the person or persons stated in such
order a Receipt or Receipts for the number of Depositary Shares representing
such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary shall, as soon as transfer and registration can be
accomplished, present such certificate or certificates to the registrar and
transfer agent of the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited Stock shall
be held by the Depositary in an account to be established by the Depositary at
the corporate office.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts for the number
of whole Depositary Shares representing the Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the New York
Office, except that, at the request, risk and expense of any person requesting
such delivery and for the account of such person, such delivery may be made at
such other place as may be designated by such person. In each case, delivery
will be made only upon payment by such person to the Depositary of all taxes
and other governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption, Exchange and Conversion of Stock. Whenever
the Company shall elect to redeem or exchange or be required to convert shares
of Stock in accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption, exchange or conversion
of Stock and the simultaneous redemption, exchange or conversion of the
Depositary Shares representing the Stock to be redeemed, exchanged or
converted and of the number of such shares of Stock held by the Depositary to
be redeemed, exchanged or converted. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed simultaneous
redemption, exchange or conversion of the Depositary Shares representing the
Stock to be redeemed, exchanged or converted, not less than 15 and not more
than 60 days prior to the date fixed for redemption, exchange or conversion of
such Stock and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, exchanged or converted, at
the addresses of such holders as the same appear on the records of the
Depositary; provided, that if the effectiveness of a Merger or consolidation
(as defined in the Certificate of Designations) makes it impracticable to
provide at least 15 days' notice, the Depositary shall provide such notice as
soon as practicable prior to such effectiveness. Any such notice shall also
be published in the same manner as notices of redemption, exchange or
conversion of Stock are required to be published pursuant to Section _____ of
the Certificate of Designations. Notwithstanding the foregoing, neither
failure to mail or publish any such notice to one or more such holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption, exchange or conversion. The Company shall provide the Depositary
with such notice, and each such notice shall state: the redemption, exchange
or conversion date; the number of Depositary Shares to be redeemed, exchanged
or converted; if fewer than all the Depositary Shares held by any holder are
to be redeemed or exchanged, the number of such Depositary Shares held by such
holder to be so redeemed or exchanged; in the case of a call for redemption,
the call price payable upon redemption (and the form of consideration, whether
cash, securities or other consideration, on which the redemption call Price
will be paid), the place or places where Receipts evidencing Depositary Shares
to be redeemed, exchanged or converted are to be surrendered for redemption,
exchange or conversion; whether the Company is depositing with a bank or trust
company on or before the redemption, exchange or conversion date, the cash
payable by the Company and the proposed date of such deposit; the amount of
accrued and unpaid dividends payable per share of Stock to be redeemed,
exchanged or converted to and including such redemption, exchange or
conversion date, as the case may be, and that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed, exchange or
converted will cease to accrue on such redemption, exchange or conversion date
(unless the Company shall default in delivering cash at the time and place
specified in such notice). On the date of any such redemption, exchange or
conversion, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be
redeemed, exchanged or converted in the manner specified in the notice of
redemption, exchange or conversion of Stock provided by the Company pursuant
to Section ____ of the Certificate of Designations. The Depositary shall,
thereafter, redeem, exchange or convert the number of Depositary Shares
representing such redeemed, exchanged or converted Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided in the
notice sent to record holders of Receipts. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by the Depositary by lot or on a pro rata basis at
the direction of the Company.
Notice having been mailed and published by the Depositary as aforesaid,
from and after the redemption, exchange or conversion date (unless the Company
shall have failed to redeem, exchange or convert the shares of Stock to be
redeemed, exchanged or converted by it upon the surrender of the certificate
or certificates therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption or exchange or subject
to conversion shall be deemed no longer to be outstanding and all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash, securities or Form of consideration payable upon redemption,
exchange or conversion upon surrender of such Receipts) shall, to the extent
of such Depositary Shares, cease and terminate. Upon surrender in accordance
with said notice of the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be converted into or redeemed or exchanged for shares
of Stock at a rate equal to ______ of the number of shares of Stock delivered,
and the holders thereof shall be entitled to ____________of the cash payable,
in respect of the shares of Stock pursuant to the Certificate of Designation.
The foregoing shall be subject further to the terms and conditions of the
Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the Redemption
Price (whether to be paid in the form of cash, shares of Stock or other form
or forms of consideration) and all accrued and unpaid dividends to and
including the date fixed for redemption payable in respect of the Depositary
shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into shares of Stock
and all of such shares of Stock cannot be distributed to the record holders of
Receipts converted or called for redemption without creating fractional
interests in such shares, the Company may distribute, or cause to be
distributed, cash to such holders in lieu of delivery of such fractional
shares or, if the Company elects not to make or cause to be made such a
distribution, the Depositary may, with the consent of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of such shares of
Stock at such place or places and upon such terms as it may deem proper, and
the net proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record holders that
would otherwise receive fractional interests in such shares of Stock.
The Depositary shall not be required (a) to issue, transfer or exchange
any Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption, in whole or in part, or subject to conversion except as provided
in the second preceding paragraph of this Section 2.03.
SECTION 2.04. Register of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof at
the Corporate Office, the New York Office or such other office as the
Depositary may designate for such purpose, by the record holder in person or
by a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, together with evidence of the payment of any
transfer taxes as may be required by law. Upon such surrender, the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon surrender of
a Receipt or Receipts at the Corporate Office, the New York Office or such
other office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock. Any holder
of a Receipt or Receipts may withdraw any or all of the Stock (but only in
whole shares of Stock) represented by the Depositary Shares evidenced by such
Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office, the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or
persons designated by such holder as hereinafter provided, the whole number of
shares of Stock and all such money and other property, if any, represented by
the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall at the same time, in addition to such whole number of shares
of Stock and such money and other property, if any, to be withdrawn, deliver
to such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. Delivery
of the Stock and such money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
The Depositary shall deliver the Stock and the money and other property,
if any, represented by the Depositary Shares evidenced by Receipts surrendered
for withdrawal, without unreasonable delay, at the office at which such
Receipts were surrendered, except that, at the request, risk and expense of
the holder surrendering such Receipt or Receipts and for the account of the
holder thereof such delivery may be made, without unreasonable delay, at such
other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts and Withdrawal or Deposit of
Stock. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal or deposit of Stock,
the Depositary, any of the Depositary's Agents or the Company may require any
or all of the following: (i) payment to it of a sum sufficient for the payment
(or, in the event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to the Stock
being deposited or withdrawn or with respect to the Stock or other securities
or property of the Company being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not inconsistent with the
provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock or the registration of transfer, split-up, combination, surrender or
exchange of outstanding Receipts and the withdrawal of deposited Stock may be
suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement
under the Securities Act is in effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so
cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt,
the registration of transfer, redemption, conversion or exchange of any
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such tax or other
governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the tax
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock represented
thereby (collectively, the "Securities"). The Depositary shall be responsible
with respect to the Securities for the timely (i) collection and deposit of
any required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities.
SECTION 3.04. Representations and Warranties as to Stock. In the case
of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties
shall survive the deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or
make available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of Depositary
Shares a fraction of one cent and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or
privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and practicable
for accomplishing such distribution. If, in the opinion of the Company after
consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any tax withholding or securities law requirement), the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section
3.02, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.01 in
the case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders
of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, the Depositary shall then, in each case,
and if applicable laws or the terms of such rights, preferences or privileges
so permit, sell such rights, preferences or privileges of such holders at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly
file a registration statement pursuant to the Securities Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the
Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect
to the Stock, or (ii) the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or of the mandatory conversion of, or any election on the
part of the Company to call for the redemption or exchange of, any shares of
Stock, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be
entitled to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or of such conversion, exchange
or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that
the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.04 will be entitled, subject to any applicable
provision of law, the Certificate of Incorporation or the Certificate of
Designations, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on such
record date, the Depositary shall endeavor insofar as practicable to vote or
cause to be voted the Stock represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request.
The Company hereby agrees to take all reasonable action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassification,
Recapitalize, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is
a party or sale of all or substantially all of the Company's assets, the
Depositary shall treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited property under
this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof in the new deposited
property so received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may, in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property.
SECTION 4.07. Reports. The Company or, at the option of the Company,
the Depositary shall forward to the holders of Receipts any reports and
communications received from the Company that are received by the Depositary
as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any Depositary's Agent or
the Registrar, take copies thereof and require the Depositary, any
Depositary's Agent or the Registrar to supply copies of such portions of such
records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration
of transfer, surrender and exchange, split-up, combination, redemption,
exchange and conversion of Receipts and deposit and withdrawal of Stock and
(ii) at the Corporate Office and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, conversion, exchange and
redemption of Receipts and deposit and withdrawal of Stock, all in accordance
with the provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar, shall keep books
at the Corporate Office for the registration and transfer of Receipts, which
books at all reasonable times shall be open for inspection by the record
holders of Receipts; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares. The Depositary shall consult with the Company upon
receipt of any request for inspection. The Depositary may close such books,
at any time or from time to time, when deemed expedient by it in connection
with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance
with the requirements of such exchange or exchanges. Such Registrar (which
may be the Depositary if so permitted by the requirements of such exchange or
exchanges) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. In addition,
if the Receipts, such Depositary Shares or such Stock are listed on one or
more stock exchanges, the Depositary will, at the request of the Company,
arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption or
conversion of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulations.
SECTION 5.02. Prevention of Delay in Performance by the Depositary, The
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Designations
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur any liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing that the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if any such exercise or failure to exercise discretion is caused by
its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to
holders or other persons, except to perform in good faith such obligations as
are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding with respect to Stock, Depositary Shares
or Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent, the Registrar and the
company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may own and
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary may also act as transfer agent
or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar shall be deemed to be an "issuer" of the Stock, the
Depositary Shares or the Receipts or other securities issued upon conversion,
exchange or redemption of the Stock under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent and the Registrar are acting
only in a ministerial capacity; provided, however, that the Depositary agrees
to comply with all information reporting and withholding requirements
applicable to it under law or this Deposit Agreement in its capacity as
Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has
any responsibility as to the validity of the Registration Statement pursuant
to which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder
or of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title
or interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with full
power, authority and legal right under such law to execute, deliver and carry
out the terms of this Deposit Agreement; (ii) this Deposit Agreement has been
duly authorized, executed and delivered by the Depositary; and (iii) this
Deposit Agreement constitutes a valid and binding obligation of the
Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors,
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Depositary shall not be accountable for
the use or application by the Company of the Depositary Shares or the Receipts
or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice via registered mail of its election to do so
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company, or an affiliate of a bank or trust
company, having its principal office in the United States of America and
having a combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 60 days, the resigning or removed
Depositary may petition a court of competent jurisdiction to appoint a
successor depositary. Every successor depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the Stock and any moneys or property
held hereunder to such successor and shall deliver to such successor a list of
the record holders of all outstanding Receipts. Any successor depositary
shall promptly mail notice of its appointment to the record holders of
Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at
the address recorded in the Depositary's books, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or
the Receipts are listed or by the Certificate of Incorporation and the
Certificate of Designations to be furnished by the Company to holders of
Stock. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as
the Depositary may reasonably request. In addition, the Depositary will
transmit to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company agrees with
the Depositary that neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any liability, costs and expenses
(including reasonable fees and expenses of counsel) that may arise out of or
in connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar
shall be payable by any person other than the Company, except for any taxes
and other governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the Depositary incurs
fees, charges or expenses for which it is not otherwise liable hereunder, such
holder or other person will be liable for such fees, charges and expenses.
All other fees, charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, reasonable fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to the amount and nature
of such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts
shall be effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby. In no event shall any amendment impair
the right, subject to the provisions of Sections 2.03, 2.06 and 2.07 and
Article III, of any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the Depositary to
deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02. Termination. Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate this Deposit Agreement if at any time 45
days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the
holders thereof and shall not give any further notices (other than notice of
such termination) or perform any further acts under this Deposit Agreement,
except as provided below and that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell rights,
preferences or privileges as provided in this Deposit Agreement and shall
continue to deliver the Stock and any money and other property represented by
Receipts, without liability for interest thereon, upon surrender thereof by
the holders thereof. At any time after the expiration of two years from the
date of termination, the Depositary may sell Stock then held hereunder at
public or private sale, at such places and upon such terms as it deems proper
and may thereafter hold in a segregated account the net proceeds of any such
sale, together with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not heretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08. In the
event this Deposit Agreement is terminated, the Company hereby agrees to use
its best efforts to list the underlying Stock on the New York Stock Exchange,
Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed by
the Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the corporate office and
the New York Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at 1615 Poydras St.,
New Orleans, Louisiana 70112, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary a written request that notices intended
for such holder be mailed to some other address, at the address designated in
such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice
in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may, with the
approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
vary or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions, and be entitled to all of the benefits, hereof and
of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof
shall be governed by, and construed in accordance with, the law of the State
of New York without giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part
of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, McMoRan Exploration Co. and
____________________________ have duly executed this Deposit Agreement as of
the day and year first above set forth and all holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
McMoRan Exploration Co.
Attest:
By:
Authorized Officer
Attest:
By:
Authorized Officer
EXHIBIT A
SEE EXHIBIT 4.10
Exhibit 4.10
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING_________________________[OF A] SHARE OF
PREFERRED STOCK
OF
McMoRan Exploration Co.
(Incorporated under the Laws of the State of Delaware)
No.
(the "Depositary") hereby certifies that
is the registered owner of Depositary Shares
(the "Depositary Shares"), each Depositary Share representing
of a share of Preferred Stock $0.01 par value (the "Stock"), of McMoRan
Exploration Co., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), deposited with the Depositary and the
same proportionate interest in any and all other property received by the
Depositary in respect of such shares of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to
all the rights, preferences and privileges of the Stock represented thereby,
including the dividend, conversion, exchange, voting, liquidation and other
rights contained in the Certificate of Designations establishing the rights,
preferences, privileges and limitations of the Stock (the "Certificate of
Designations"), copies of which are on file at the office of the Depositary at
which at any particular time its business in respect of matters governed by
the Deposit Agreement shall be administered, which at the time of the
execution of the Deposit Agreement is located at
(the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose
unless this Receipt shall have been executed manually or, if a Registrar for
the Receipts (other than the Depositary) shall have been appointed, by
facsimile by the Depositary by the signature of a duly authorized officer and,
if executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a duly authorized
officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT
AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF
THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY
RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN
AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt without charge,
upon request addressed to its executive office, a full statement of the
designation, relative rights, preferences and limitations of the shares of
each authorized class, and of each class of preferred stock authorized to be
issued, so far as the same may have been fixed, and a statement of the
authority of the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated:
as Depositary and Registrar
By:
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt Appear on the
Reverse Side.
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement, dated as of ____________________ (the
"Deposit Agreement"), among the Company, the Depositary and all holders from
time to time of Receipts. The Deposit Agreement (copies of which are on file
at the Corporate office, the office maintained by the Depositary in the
Borough of Manhattan, the City of New York which at the time of the execution
of the Deposit Agreement is located at ____________________________ (the "New
York Office") and at the office of any agent of the Depositary) sets forth the
rights of holders of Receipts and the rights and duties of the Depositary.
The statements made on the face and the reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Redemption, Exchange and Conversion of Stock. Whenever the
Company shall elect to redeem or exchange or be required to convert shares of
Stock in accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice or redemption, exchange or conversion
of Stock and the simultaneous redemption, exchange or conversion of the
Depositary shares representing the Stock to be redeemed, exchanged or
converted and of the number of such shares of Stock held by the Depositary to
be redeemed, exchanged or converted. The Depositary shall, as directed by the
company in writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed simultaneous,
redemption, exchange or conversion of Depositary Shares representing the Stock
to be redeemed, exchanged or converted, not less than 15 and not more than 60
days prior to the date fixed for redemption, exchange or conversion of such
Stock and Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, exchanged or converted, at the
addresses of such holders as the same appear on the records of such holders as
the same appear on the records of the Depositary; provided, that if the
effectiveness of a Merger or Consolidation (as defined in the Certificate of
Designations) makes it impracticable to provide at least 15 days notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption, exchange or conversion of the Stock are required to be
published pursuant to Section _____ of the Certificate of Designations. On
the date of any such redemption, exchange or conversion, the Depositary shall
surrender the certificate or certificates held by the Depositary evidencing
the number of shares of Stock to be redeemed, exchanged or converted in the
manner specified in the notice of redemption, exchange or conversion of Stock
provided by the Company pursuant to Section ____ of the Certificate of
Designations. The Depositary shall, thereafter, redeem, exchange or convert
the number of Depositary shares representing such redeemed, exchanged or
converted Stock upon the surrender of Receipts evidencing such Depositary
Shares in the manner provided in the notice sent to record holders of
Receipts. In case fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected by the
Depositary by lot or on a pro rata basis at the direction of the Company.
Notice having been mailed and published as aforesaid, from and after the
redemption, exchange or conversion date (unless the Company shall have failed
to redeem, exchange, or convert the shares of Stock to be redeemed, exchanged
or converted by it upon the surrender of the certificate or certificates
therefor by the Depositary as described above), the Depositary Shares called
for redemption or exchange or subject to conversion shall be deemed no longer
to be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be converted
or exchanged into shares of Stock at a rate equal to ________ of the number of
shares of Stock delivered, and the holders thereof shall be entitled to
________ of the the cash payable, in respect of the shares of Stock pursuant
to the Certificate of Designations. The foregoing is subject further to the
terms and conditions of the Certificate of Designations. If fewer than all of
the Depositary Shares evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon its surrender to
the Depositary, together with the redemption price (whether to be paid in the
form of cash, shares of Stock or other form or forms of consideration) and all
accrued and unpaid dividends to and including the date fixed for redemption
payable in respect of the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of
this Receipt to the Depositary at the Corporate office, the New York Office or
at such other offices as the Depositary may designate, and subject to the
provisions of the Deposit Agreement, the holder hereof is entitled to
withdraw, and to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole shares of
Stock) and all money and other property, if any, at the time represented by
the Depositary Shares evidenced by this Receipt; provided, however, that, in
the event this Receipt shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the whole number of shares of
Stock to be withdrawn, the Depositary shall, in addition to such whole number
of shares of Stock and such money and other property, if any, to be withdrawn,
deliver, to or upon the order of such holder, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to Paragraphs 6, 7
and 8 below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or the New
York Office, or at such other offices as the Depositary may designate,
properly endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and deliver a
Receipt or Receipts to or upon the order of the person entitled thereto, all
as provided in and subject to the Deposit Agreement. This Receipt may be
split into other Receipts or combined with other Receipts into one Receipt
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of Receipts.
Prior to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of this Receipt, the delivery of any
distribution hereon or the withdrawal or deposit of Stock, the Depositary, any
of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Stock being
deposited or withdrawn or with respect to Stock of the Company being issued
upon conversion, exchange or redemption); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such reasonable regulations, if any, as the Depositary
or the Company may establish not inconsistent with the Deposit Agreement. Any
person presenting Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and
to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold or delay the delivery of this Receipt, the registration of transfer,
redemption, conversion or exchange of this Receipt, the withdrawal of the
Stock represented by the Depositary Shares evidenced by this Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations
and warranties are made.
7. Suspension of Delivery, Transfer, etc. the deposit of Stock may
be refused and the delivery of this Receipt against Stock or the registration
of transfer, split-up, combination, surrender or exchange of this Receipt and
the withdrawal of deposited Stock may be suspended (i) during any period when
the register of stockholders of the Company is closed, (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be required to
(a) to issue, transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of Depositary Shares
and Stock to be redeemed and ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares or (b) to transfer or
exchange for another Receipt any Receipt evidencing Depositary Shares called
or being called for redemption, in whole or in part, subject to conversion or
exchange except as provided in the last sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge shall
be payable by the holder of this Receipt, who shall pay the amount thereof to
the Depositary. Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any withdrawal of the Stock
or money or other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other distribution
may be withheld and any part or all of the Stock or other property represented
by the Depositary Shares evidenced by this Receipt may be sold for the account
of the holder hereof (after attempting by reasonable means to notify such
holder prior to such sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of this Receipt remaining liable for any
deficiency.
9. Amendment. The form of the Receipts and any provision of the
Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts
shall be effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 3, 4 6, 7, and 8 hereof and of
Sections 2.03, 2.06 and 2.07 and Article III of the Deposit Agreement, of the
owner of the Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all fees,
charges and expenses of the Depositary, except for taxes (including transfer
taxes, if any) and other governmental charges and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby),
when properly endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement,
distribute to record holders of Receipts such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that
in case the Company or the Depositary shall be required by law to withhold and
does withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction
of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose name
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders
of Receipts in such manner as the Company shall instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever (i) any
cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice, or
of the mandatory conversion of, or any election on the part of the Company to
call for redemption or exchange of, any shares of Stock, the Depositary shall
in each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or (y) who shall be entitled to give
instructions for the exercise of voting rights at any such meeting or of such
meeting or to receive notice of such conversion, exchange or redemption.
15. Voting Rights. Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date determined as provided in Paragraph 14 will be entitled,
subject to any applicable provision of law, the Certificate of Incorporation
or the Certificate of Designations, to instruct the Depositary as to the
exercise of the voting rights pertaining to the Stock represented by their
respective Depositary Shares, and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of
this Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office, the
New York Office and at such other places as it may from time to time deem
advisable during normal business hours any reports and communications received
from the Company that are received by the Depositary as the holder of Stock.
The Depositary, acting as transfer agent and Registrar, shall keep books at
the Corporate Office for the registration and transfer of Receipts, which
books at all reasonable times will be open for inspection by the record
holders of Receipts; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company shall incur any liability to any holder of
this Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any
provision present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the Depositary,
the Registrar or any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of the
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the company incur any
liability to any holder of this Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done or performed or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement except, in the case of the Depositary,
any Depositary's Agent or the Registrar, if such exercise or failure to
exercise discretion is caused by its negligence or bad faith.
18. Obligations of the Depositary, the Depositary Agent, the
Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform in
the Deposit Agreement. Each of the Depositary, the Depositary's Agents and
the Registrar assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or other persons,
except to perform such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding with respect to Stock, Depositary Shares
or Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company will be liable for any action or failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or
information.
19. Termination of Deposit Agreement. Whenever so directed by the
Company, the Depositary will terminate the Deposit Agreement by mailing notice
of such termination to the record holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination.
The Depositary may likewise terminate the Deposit Agreement if at any time 45
days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04 of the Deposit Agreement. Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.07 and 5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination of the
Deposit Agreement, the Depositary thereafter shall discontinue all functions
and be discharged from all obligations as provided in the Deposit Agreement,
except as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New
York without giving effect to principles of conflict of laws
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________ the within Receipt and all rights and interests represented by
the Depositary shares evidenced thereby, and hereby irrevocably constitutes
and appoints _______________________ his attorney, to transfer the same on
the books of the within-named Depositary, with full power of substitution in
the premises.
Dated: Signature:
NOTE: The signature to this
assignment must correspond with the name as written upon the face of the
Receipt in every particular, without alteration or enlargement, or any change
whatever.
Jones Walker
Waechter Poitevent
Carrere & Denegre L.L.P.
January 21, 2000
McMoRan Exploration Co.
1615 Poydras Street
New Orleans, Louisiana 70112
Re: Registration Statement on Form S-3
McMoRan Exploration Co.
Gentlemen:
We have acted as counsel to McMoRan Exploration Co. ("MMR"), a Delaware
corporation, in connection with the preparation of a registration statement on
Form S-3 (the "Registration Statement") filed by MMR with the Securities and
Exchange Commission relating to the registration of $300,000,000 of the
following securities of MMR: (i) Common Stock; (ii) Debt Securities; (iii)
Preferred Stock; (iv) Warrants to purchase Debt Securities, Preferred Stock and
Common Stock; and (v) Depositary Shares representing interests in Preferred
Stock deposited with a Depositary and evidenced by Depositary Receipts. MMR
also may issue (i) shares of Common Stock upon the conversion of Debt
Securities or Preferred Stock; (ii) Preferred Stock upon the conversion of Debt
Securities; and (iii) Debt Securities, Common Stock or Preferred Stock upon the
exercise of Warrants registered pursuant to the Registration Statement. The
foregoing securities are collectively referred to as the "Securities."
The Securities may be issued from time to time in one or more series as
determined by MMR's Board of Directors and as set forth in a supplement to the
prospectus that forms part of the Registration Statement. The particular terms
of each series of Securities offered by a particular prospectus supplement will
be described in the prospectus supplement. The Debt Securities will constitute
either indebtedness designated as senior indebtedness, senior subordinated
indebtedness or subordinated indebtedness. The Debt Securities will each be
issued under indentures (individually, the "Indenture" and collectively, the
"Indentures") to be entered into prior to the issuance of the Securities.
In rendering the opinions expressed below, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments as we have deemed necessary or advisable for purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such documents.
Based upon the foregoing and subject to the following qualifications and
comments, we are of the opinion that:
1. MMR is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power to issue the Securities.
2. The Common Stock will be legally issued, fully paid and non-
assessable when (i) MMR's Board of Directors shall have taken all necessary
corporate action to approve the issuance of the Common Stock; (ii) a prospectus
supplement with respect to such Common Stock shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 (the "Act"); and (iii) certificates representing the
Common Stock shall have been duly executed, countersigned and registered and
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor in accordance with the applicable underwriting, purchase
or similar agreement or upon conversion, exchange or exercise in accordance with
the terms of any other Security that has been duly authorized, issued, paid for
and delivered.
3. Each series of Debt Securities will be legally issued and constitute
the valid and binding obligation of MMR when (i) the Indenture shall have been
duly authorized, executed and delivered by MMR and the Trustee; (ii) MMR's Board
of Directors shall have taken all necessary corporate action to approve the
issuance of such Debt Securities and to establish the terms and conditions
thereof; (iii) a prospectus supplement with respect to such series of Debt
Securities shall have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424(b) of the Act; and (iv) any certificates representing such
series of Debt Securities as may be required by the Indenture shall have been
duly authenticated, executed and delivered in accordance with the Indenture
against payment therefor in accordance with the applicable underwriting,
purchase or similar agreement or upon the exercise of any other Security that
has been duly authorized, issued, paid for and delivered.
4. Each series of Preferred Stock will be legally issued, fully paid
and non-assessable when (i) MMR's Board of Directors shall have taken all
necessary corporate action to approve the issuance of such Preferred Stock and
to establish the terms and conditions thereof; (ii) a certificate of
designations shall have been filed with the Delaware Secretary of State as
required by the Delaware General Corporation Law; (iii) a prospectus supplement
with respect to such series of Preferred Stock shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act;
and (iv) certificates representing such series of Preferred Stock shall have
been duly executed, countersigned and registered and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or similar agreement or
upon conversion, exchange or exercise in accordance with the terms of any other
Security that has been duly authorized, issued, paid for and delivered.
5. Each series of Warrants will be legally issued and constitute the
valid and binding obligation of MMR when (i) a Warrant Agreement relating to
such Warrants shall have been duly authorized, executed and delivered by MMR and
the warrant agent or agents thereunder; (ii) MMR's Board of Directors shall have
taken all necessary corporate action to approve the issuance of such Warrants
and to establish the terms and conditions thereof; (iii) a prospectus supplement
with respect to such Warrants shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act; (iv) any and all actions
required under the Indenture to validly issue the Debt Securities, and under the
Delaware General Corporation Law to validly issue the Common Stock or Preferred
Stock, upon exercise of the Warrants shall have been taken; and (v) such
Warrants shall have been duly executed and authenticated or countersigned as
provided in the Warrant Agreement relating thereto and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or similar agreement.
6. The Depositary Shares will be legally issued, fully paid and non-
assessable when (i) a Deposit Agreement relating to the Depositary Shares shall
have been duly authorized, executed and delivered by MMR and the depositary
thereunder; (ii) MMR's Board of Directors shall have taken all necessary
corporate action to approve the issuance of the Depositary Shares; (iii) a
prospectus supplement with respect to such Depositary Shares shall have been
filed (or transmitted for filing) with the Commission pursuant to Rule 424(b) of
the Act; and (iv) Depositary Receipts shall have been duly delivered as may be
required by the Deposit Agreement against the deposit of duly authorized,
validly issued, fully paid and non-assessable shares of Preferred Stock and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor in accordance with the applicable underwriting, purchase or similar
agreement.
The opinions in paragraphs 3 and 5 hereof are subject to the qualification
that enforceability may be limited by (i) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws of general
applicability relating to or affecting the enforcement of creditors' rights;
(ii) public policy considerations that may limit the rights of parties to obtain
certain remedies; (iii) the fact that specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought;
(iv) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); and (v) governmental authority
to limit, delay or prohibit the making of payments outside of the United States
or in a foreign currency or currency unit.
In connection with the opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any Security: (i) the Board of Directors
of MMR shall have duly authorized the issuance and sale of such Security and
such authorization shall not have been modified or rescinded; (ii) the
Registration Statement, as finally amended, shall have been declared effective
under the Act and such effectiveness shall not have been terminated or
rescinded; (iii) the applicable Indentures, if any, shall have been duly
authorized, executed and delivered by MMR and the applicable trustee and shall
have been qualified under the Trust Indenture Act of 1939, as amended; and (iv)
there will not have occurred any change in law affecting the validity or
enforceability of such Security. We have also assumed that none of the terms of
any Security to be established subsequent to the date hereof nor the issuance
and delivery of such Security, nor the compliance by MMR with the terms of such
Security, will violate any applicable law or result in a violation of any
provision of any instrument or agreement then binding upon MMR, or any
restriction imposed by any court or governmental body having jurisdiction over
MMR.
We are members of the Bar of the State of Louisiana and the foregoing
opinion is limited to the laws of the State of Louisiana, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware (including the applicable provisions of the Delaware Constitution and
reported judicial decisions interpreting these laws). We assume no obligation
to revise or supplement this opinion should such currently applicable laws be
changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement of MMR relating to the Securities and to the reference to
our name in the Prospectus contained therein. In giving this consent, we do not
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the general rules and regulations of
the Commission.
Very truly yours,
/s/ Jones, Walker, Waechter, Poitevent,
Carrere & Denegre L.L.P.
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE L.L.P.
Exhibit 12
McMoRan Exploration Co.
COMPUTATION OF RATIO OF EARNING TO FIXED CHARGES
Years Ended December 31,
--------------------------------------------
1995 1996 1997 1998 1999
-------- ------- -------- -------- ------
(in thousands)
Income (Loss) from
Continuing Operations $(14,635) $(9,862) $(10,538) $(18,116) $ 109
ADD:
Provision for Income Taxes - - - - 71
Interest Expense - 403 1,272 238 679
Rental Expense Factor - - - 1,021 7,787
Earnings Available for
Fixed Charges (14,635) (9,459) (9,266) (16,857) 8,646
Interest Expense - 403 1,272 238 679
Capitalized Interest - - - - -
Rental Expense Factor - - - 1,021 7,787
Fixed Charges - 403 1,272 1,259 8,466
Ratio to Earnings to -------- ------ ------- -------- ------
Fixed Charges -(a) -(a) -(a) -(a) 1.02
======== ====== ======= ======== ======
(a) There were no fixed charges during 1995. During 1996, 1997 and 1998, we
recorded net losses of $9.8 million, $10.5 million and $18.1 million,
respectively. These losses were inadequate to cover our fixed charges of $0.4
million in 1996, $1.3 million in 1997 and $1.3 million in 1998.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on our reports dated January 19,
1999, included in the McMoRan Exploration Co. Annual Report on Form 10-K for
the year ended December 31, 1998, and to all references to our Firm included
in this registration statement.
New Orleans, Louisiana
January 21, 2000
Exhibit 23.2
CONSENT OF INDEPENDENT PETROLUEM ENGINEER
As independent petroleum engineers, we hereby consent to the use of our
name included herein or incorporated by reference in this Registration
Statement on Form S-3 of McMoRan Exploration Co. and to the reference to our
estimates of reserves and present value of future net reserves as of December
31, 1998 incorporated by reference therein.
RYDER SCOTT COMPANY
PETROLUEM ENGINEERS
Houston, Texas
January 21, 2000
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Richard C. Adkerson and Rene L. Latiolais his true and lawful attorney-
in-fact and agent, each with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement of McMoRan Exploration Co. with respect to $300,000,000 of
securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ James R. Moffett
----------------
James R. Moffett
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais her true
and lawful attorney-in-fact and agent, each with full power of substitution,
for her and in her name, place and stead, in any and all capacities, to sign
the Registration Statement of McMoRan Exploration Co. with respect to
$300,000,000 of securities, and any and all amendments (including post-effective
amendments) to the Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and
other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ Nancy D. Parmelee
------------------
Nancy D. Parmelee
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais his true
and lawful attorney-in-fact and agent, each with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of McMoRan Exploration Co. with respect to $300,000,000
of securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ C. Donald Whitmire, Jr.
-----------------------
C. Donald Whitmire, Jr.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett and Richard C. Adkerson his true and lawful attorney-
in-fact and agent, each with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement of McMoRan Exploration Co. with respect to $300,000,000 of securities,
and any and all amendments (including post-effective amendments) to the
Registration Statement, including any related registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, and other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ Rene L. Latiolais
-----------------
Rene L. Latiolais
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais his true
and lawful attorney-in-fact and agent, each with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of McMoRan Exploration Co. with respect to $300,000,000
of securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ Robert A. Day
-------------
Robert A. Day
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais his true
and lawful attorney-in-fact and agent, each with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of McMoRan Exploration Co. with respect to $300,000,000
of securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ B. M. Rankin, Jr.
-----------------
B. M. Rankin, Jr.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais his true
and lawful attorney-in-fact and agent, each with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of McMoRan Exploration Co. with respect to $300,000,000
of securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ Gerald J. Ford
--------------
Gerald J. Ford
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett, Richard C. Adkerson and Rene L. Latiolais his true
and lawful attorney-in-fact and agent, each with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of McMoRan Exploration Co. with respect to $300,000,000
of securities, and any and all amendments (including post-effective amendments)
to the Registration Statement, including any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ H. Devon Graham, Jr.
--------------------
H. Devon Graham, Jr.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James R. Moffett and Rene L. Latiolais his true and lawful attorney-in-
fact and agent, each with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Registration Statement
of McMoRan Exploration Co. with respect to $300,000,000 of securities, and any
and all amendments (including post-effective amendments) to the Registration
Statement, including any related registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the ____ day of January, 2000.
/s/ Richard C. Adkerson
-------------------
Richard C. Adkerson
