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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CALLON PETROLEUM COMPANY
(Exact name of registrant as specified in its charter)
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DELAWARE 64-0844345
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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200 NORTH CANAL ST.
NATCHEZ, MS 39120
(601) 442-1601
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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JOHN S. WEATHERLY
200 NORTH CANAL ST.
NATCHEZ, MS 39120
(601) 442-1601
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
GEORGE G. YOUNG III
HAYNES AND BOONE, LLP
1000 LOUISIANA ST., SUITE 4300
HOUSTON, TEXAS 77002
TELEPHONE: (713) 547-2081
TELECOPY: (713) 547-2600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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
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PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED(2) PRICE(1) FEE
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Debt Securities.............................................
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Preferred Stock, par value $0.01 per share..................
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Common Stock, par value $0.01 per share.....................
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Securities Warrants.........................................
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Securities Purchase Contracts...............................
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Total............................................... $125,000,000 $34,750
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $125,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Subject to footnote (1), there is also being registered an indeterminate
principal amount of Debt Securities, an indeterminate number of shares of
Preferred Stock and Common Stock, an indeterminate number of Securities
Warrants and an indeterminate number of Securities Purchase Contracts as may
be issuable, offered or sold upon conversion, redemption, exchange or
exercise of the Debt Securities, Preferred Stock, Securities Warrants or
Securities Purchase Contracts registered hereunder. Pursuant to Rule 416,
the Registration Statement also covers such indeterminate additional shares
of Common Stock as may become issuable to prevent dilution resulting from
stock splits, stock dividends or similar events.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT 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 IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1999
[LOGO] CALLON PETROLEUM COMPANY
200 NORTH CANAL ST.
NATCHEZ, MS 39120
(601) 442-1601
$125,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SECURITIES WARRANTS
SECURITIES PURCHASE CONTRACTS
Callon Petroleum Company's common stock is listed on the New York Stock
Exchange, under the symbol "CPE."
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
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This prospectus may not be used to consummate sales of securities unless we
also furnish you with a prospectus supplement describing the final terms of the
securities offered.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS PROSPECTUS IS DATED , 1999
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TABLE OF CONTENTS
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PAGE
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About This Prospectus....................................... 1
Where You Can Find More Information......................... 1
Disclosure Regarding Forward Looking Statements............. 2
About Callon Petroleum Company.............................. 2
Use of Proceeds............................................. 3
Ratios of Earnings to Fixed Charges and of Earnings to
Combined Fixed Charges and Preferred Stock Dividends...... 3
Description of Debt Securities.............................. 4
Description of Capital Stock................................ 15
Description of Securities Warrants.......................... 19
Description of Securities Purchase Contracts and Securities
Purchase Units and Prepaid Securities..................... 20
Plan of Distribution........................................ 20
Experts..................................................... 22
Legal Matters............................................... 22
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ABOUT THIS PROSPECTUS
In this prospectus, the words "Company," "we," "our," "ours" and "us" refer
to Callon Petroleum Company, and its subsidiaries, unless otherwise stated or
the context requires.
This prospectus is part of a registration statement that we have filed with
the SEC utilizing a shelf registration process. Under this shelf process, we may
sell the securities described in this prospectus in one or more offerings up to
a total dollar amount of $125,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement containing specific
information about the terms of that offering. The prospectus supplement may also
add, update or change the information in this prospectus. You should read this
prospectus, the relevant prospectus supplement and the information described
under the heading "Where You Can Find More Information."
We believe that we have included or incorporated by reference all
information material to investors in this prospectus, but certain details that
may be important for specific investment purposes have not been included. To see
more detail, you should read the exhibits filed with or incorporated by
reference into this registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file, including
the registration statement, at the SEC's public reference room located at 450
Fifth Street, N.W., Washington, D.C., 20549, or its public reference rooms
located in New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for information on the operation of the public reference rooms.
Our SEC filings are also available to the public from the SEC's web site at
http://www.sec.gov. They are located in the EDGAR database on that web site. You
may also obtain information about us from the New York Stock Exchange, where our
common stock is listed.
The SEC allows us to incorporate by reference information from the
documents we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we later file with the SEC will automatically update and
supersede this information. Specifically, we incorporate by reference the
documents listed below and any future filings we make with the SEC (including
any filings we make prior to the effectiveness of the registration statement)
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until the offering is terminated:
- Our Annual Report on Form 10-K for the year ended December 31, 1998;
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999;
- Our Current Reports on Form 8-K filed on February 3, 1999 and March 3,
1999;
- The description of our common stock contained in the Registration
Statement on Form 8-B filed on October 3, 1994; and
- The description of our convertible exchangeable preferred stock contained
in the Registration Statement on Form 8-A filed on November 13, 1995, as
amended and Form 8-A/A filed on November 21, 1995.
This prospectus is part of a registration statement we filed with the SEC
(Registration No. 333- ).
You may request a copy of any of the information incorporated by reference,
at no cost, by writing or telephoning us at the following address:
Callon Petroleum Company
200 North Canal Street
Natchez, MS 39120
(601) 442-1601
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you
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with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. We can not assure you
that the plans, intentions or expectations upon which our forward-looking
statements are based will occur. Our forward-looking statements are subject to
risks, uncertainties and assumptions, including those discussed elsewhere in
this prospectus and the documents that are incorporated by reference into this
prospectus. Some of these risks which could affect our future results and could
cause results to differ materially from those expressed in our forward-looking
statements include:
- the volatility of oil and natural gas prices;
- the uncertainty of estimates of oil and natural gas reserves;
- the impact of competition;
- difficulties encountered during the exploration for and production of oil
and natural gas;
- the difficulties encountered in delivering oil and natural gas to
commercial markets;
- changes in customer demand;
- the uncertainty of our ability to attract capital;
- changes in the extensive government regulations regarding the oil and
natural gas business; and
- compliance with environmental regulations.
The information contained in this prospectus and in the documents
incorporated by reference into this prospectus identify additional factors that
could affect our operating results and performance. We urge you to carefully
consider those factors.
Our forward-looking statements are expressly qualified in their entirety by
this cautionary statement.
ABOUT CALLON PETROLEUM COMPANY
We have been engaged in the exploration, development, acquisition and
production of oil and gas properties since 1950. Our properties are
geographically concentrated offshore in the Gulf of Mexico, where we have
substantial experience. Since 1996, our primary focus has been on acquiring
exploration prospects, conducting 3-D and conventional 2-D seismic surveys of
these prospects and drilling exploration wells. We have assembled a balanced
portfolio of exploration projects in the Gulf of Mexico composed of:
- controlling working interests in projects with low exploration risk and
low drilling and completion costs targeting reserve deposits of between
three and 10 Bcf in the shallow Miocene area at depths of less than 4,000
feet;
- significant working interest in projects with higher exploration risk and
higher drilling and completion costs targeting reserve deposits of
between 10 and 100 Bcfe in the outer continental shelf area at depths of
between 7,000 and 17,000 feet; and
- small working interest in projects with high exploration risk and high
drilling and completion cost targeting reserve deposits in the deep water
area of the Gulf of Mexico.
Our principal executive offices are located at 200 North Canal Street,
Natchez, Mississippi 39120 and our telephone number is (601) 442-1601.
USE OF PROCEEDS
Unless otherwise set forth in the applicable prospectus supplement,
proceeds from the sale of the securities sold by us will be used for general
corporate purposes. These purposes may include
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acquisitions, working capital, capital expenditures, the repurchase of
outstanding securities and the repayment of indebtedness. Proceeds from the sale
of securities initially may be temporarily invested in short-term securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to fixed charges and of earnings to combined fixed
charges and preferred stock dividends for the periods indicated below as
calculated under generally accepted accounting principles are as follows:
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YEAR ENDED DECEMBER 31, SIX MONTHS ENDED
-------------------------------- JUNE 30,
1994 1995 1996 1997 1998 1999
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Ratio of earnings to fixed charges........... -- 1.6 8.8 3.3 -- --
Ratio of earnings to combined fixed charges
and preferred stock dividends.............. -- 1.3 1.2 1.7 -- --
</TABLE>
When we calculate our ratio of earnings to fixed charges, "earnings" are
composed of the following:
- consolidated earnings or loss from continuing operations before tax,
excluding undistributed equity earnings or affiliated companies; plus
- fixed charges, excluding capitalized interest.
Fixed charges are comprised of the following:
- interest expense on indebtedness and capitalized interest;
- amortization of debt issuance costs, discounts and premiums; and
- the portion of capitalized leases deemed to be representative of
interest.
Earnings did not cover fixed charges by $679,000 through the second quarter
of 1999, $50.3 million in 1998 and $313,000 in 1994.
In calculating the ratio of earnings to combined fixed charges and
preferred stock dividends, fixed charges include pre-tax preferred stock
dividend requirements.
Earnings did not cover combined fixed charges and preferred stock dividends
by $2.7 million through the second quarter of 1999, $54.5 million in 1998 and
$313,000 in 1994.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be our direct unsecured obligations. The debt
securities will be either senior debt securities or subordinated debt
securities. The debt securities will be issued under one or more indentures
between us and a trustee that we will name in the prospectus supplement. Senior
debt securities will be issued under a "senior indenture" and subordinated debt
securities will be issued under a "subordinated indenture." Together, we refer
to the senior indenture and subordinated indenture as the "indentures."
We have not restated the indentures in their entirety. We filed the forms
of the indentures as exhibits to our registration statement. You should read the
indentures because they, and not this description, will control your rights as
holders of debt securities. In the summary below, we have included references to
section numbers of the applicable indentures so that you can easily locate these
provisions. Capitalized terms used in the summary have the meanings specified in
the indentures.
Unless otherwise specifically noted in the following discussion, references
to "we," "us" or "our" means Callon Petroleum Company without its subsidiaries.
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We have summarized the material provisions of the indentures in the
following order:
- those applicable to both indentures; and
- those applicable only to the subordinated indenture.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General
The debt securities described in a prospectus supplement will be our
unsecured, senior or subordinated obligations. The senior debt securities will
rank equally with all of our other unsecured and unsubordinated debt, and will
rank senior to our subordinated debt. The subordinated debt securities will have
a junior position to our senior indebtedness. Subordinated debt securities may
rank equally with or junior to our existing subordinated indebtedness. The terms
of subordination are described below under "Provisions Applicable Solely to
Subordinated Debt Securities -- Subordination" and may be further described or
changed in a prospectus supplement.
A prospectus supplement relating to any series of debt securities that we
offer will include specific terms relating to that series. These terms will
include, among other things, some or all of the following:
- the title of the debt securities;
- the total principal amount;
- whether they are senior debt securities or subordinated debt securities;
- if they are subordinated debt securities, the terms of subordination if
different from those described below;
- whether the series of debt securities are issuable as registered
securities, bearer securities or both;
- whether any debt securities of the series are to be issuable in temporary
or permanent global form with or without coupons, and whether permanent
global securities may be exchanged for securities of such series;
- the person to whom any interest on any series shall be payable;
- the dates on which principal and any premium on the debt securities will
be payable;
- the interest rate or the method used to determine the interest rate,
record and interest payment dates;
- whether and under what circumstances any additional amounts with respect
to the debt securities will be payable;
- the place or places where payments on the debt securities are payable or
the method of payment and where the debt securities may be surrendered
for transfer or exchange;
- any optional redemption provisions;
- any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem the series of debt before final maturity;
- the denominations in which the debt securities will be issuable;
- whether payments on the debt securities will be payable in foreign
currency or currency units or another form, and whether payments will be
payable by reference to any index or formula;
- the portion of the principal amount of debt securities that will be
payable if the maturity is accelerated, if other than the entire
principal amount;
- whether the securities of the series will be issued in the form of
book-entry securities, the depositary for such series, and the
circumstances for exchanging such book-entry securities for certificated
securities;
- any means of defeasance on the debt securities and any additional
conditions or limitations to defeasance of the debt securities;
- any changes to or additional events of default or covenants;
- if the principal amount payable at the stated maturity of any securities
will not be determinable at any time prior to the stated maturity, the
amount which shall be deemed to be the principal amount of such
securities as of any such time;
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- any restriction or condition on the transfer or exchange of the debt
securities;
- any rights that we may have to defer payments of interest;
- any terms for the conversion or exchange of the debt securities for other
securities of ours or any other entity; and
- any other terms of the series of debt securities.
A series of debt securities may be issued with an original issue discount.
An original issue discount provides that less than the entire principal amount
of the series of debt securities is payable upon declaration of acceleration of
the maturity of the series of debt securities. Special U.S. federal income tax
considerations may be applicable to debt securities issued at an original issue
discount. These special considerations will be set forth in a prospectus
supplement relating to the series of debt securities.
The indentures do not limit the amount of debt securities or other types of
indebtedness we may issue. The indentures allow debt securities to be issued up
to any principal amount that we may authorize. The subordinated indenture allows
us to issue subordinated debt securities which are convertible into other
securities, including shares of our common stock or preferred stock.
Debt securities may be issued in certificated or global form. (Sections
201, 203 and 301)
Information about the Trustee
The trustee may resign at any time. The prospectus supplement will describe
any rights the holders of a series of debt securities have to remove the
trustee. Under the Trust Indenture Act of 1939, as amended, governing trustee
conflicts of interest, any uncured Event of Default with respect to any series
of senior debt securities will force the trustee to resign as trustee under
either the subordinated indenture or the senior indenture. Similarly, any
uncured Event of Default with respect to any series of subordinated debt
securities will force the trustee to resign as trustee under either the senior
indenture or subordinated indenture. If the trustee resigns, is removed or
becomes incapable of acting as trustee, a successor trustee will have to be
appointed in accordance with the provisions of the applicable indenture.
Denominations
The prospectus supplement for each series of debt securities will state
whether we will issue the debt securities in registered form or in bearer form.
Modification of Indentures; Waiver of Covenants
We generally may amend the indentures or the debt securities with the
written consent of a majority in principal amount of the outstanding debt
securities of each series affected by the amendment, with each series voting
separately as a class. The holders of a majority in principal amount of the
outstanding debt securities of any series may also waive our compliance with any
provision of the indentures with respect to debt securities of that series. We
must, however, obtain the consent of each holder of debt securities affected by
an amendment or waiver which does, among other things, any of the following:
- changes the stated maturity of, or any installment of principal of or
interest on, any debt securities;
- reduces the principal amount of, or rate of interest or premium payable
on, any debt securities;
- reduces the amount of the principal of an original issue discount
security or other security which would be payable upon acceleration of
the debt securities;
- adversely affects any right of repayment at the option of a holder of any
debt security;
- reduces the amount of, or postpones the date fixed for, the payment of
any sinking fund or analogous obligation;
- changes the place of payment where, or the currency in which, any debt
security is payable;
- impairs the right to institute suit for the enforcement of any payment on
or after the stated maturity date of any debt security; or
- reduces the percentage of holders required to consent to any supplements,
modifications, waivers or amendments to the indentures. (Section 902)
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Additionally, the subordinated indenture may not be modified to alter the
terms of subordination of any outstanding series of subordinated debt securities
without the consent of the holder of senior indebtedness that would be adversely
affected by the modification. (Section 907 of the subordinated indenture)
If we issue convertible subordinated debt securities, the terms of
conversion may not be modified in a manner which is adverse to the holders of
the convertible subordinated debt securities without the consent of such
holders. (Section 902 of the subordinated indenture)
If we issue a series of debt securities with an original issue discount or
with a principal amount that is not fixed, the applicable prospectus supplement
will describe the manner in which we will determine whether holders of a
majority of principal amount of a series of debt securities have approved a
modification or waiver of a provision of an indenture.
We may amend the indentures or outstanding debt securities without notice
to or consent from any holder of the debt security to do, among other things,
any of the following:
- permit a successor corporation to assume our obligations under the
indenture following a merger, consolidation or similar transaction;
- add to our covenants for the benefit of the holders of any series of debt
securities;
- add additional events of default for the benefit of the holders of all or
any series of securities;
- accept the appointment of a successor trustee of one or more series and
to provide for more than one trustee, if applicable;
- cure any ambiguity, defect or inconsistency;
- secure debt securities issued pursuant to the indentures;
- provide that bearer securities may be registrable as to principal, amend
restrictions on the payment of principal, premiums or interest on bearer
securities, or permit bearer securities to be issued in exchange for
registered securities or bearer securities of other authorized
denominations;
- amend any provision of an indenture in a manner that does not apply to,
or modify the rights of holders of, any debt securities outstanding at
the time and entitled to rely on the provision;
- provide for uncertificated securities of any series;
- comply with the requirements of the SEC in order to effect or maintain
the qualification of the indentures under the Trust Indenture act; or
- make any change that does not adversely affect the interests of any
holder of outstanding debt securities. (Section 901)
Meetings of Holders of Debt Securities
Each indenture contains provisions for convening meetings of the holders of
a series if debt securities of that series are issuable as bearer securities.
(Section 1401) A meeting may be called at any time by the Trustee, by our board
of directors or the holders of at least 10% in aggregate principal amount of the
outstanding securities of such series. (Section 1402) Except for any consent
which must be given by the holder of each outstanding security affected thereby,
as described above, any resolution presented at a meeting (or adjourned meeting
at which a quorum is present) may be adopted by the affirmative vote of the
holders of a majority in aggregate principal amount of the outstanding
securities of that series; provided, however, that any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other action which may be made, given or taken by the holders of a specified
percentage which is less than a majority in aggregate principal amount of the
outstanding securities of a series may be adopted at a meeting (or adjourned
meeting duly reconvened at which a quorum is present) by the affirmative vote of
the holders of such specified percentage in aggregate principal amount of the
outstanding securities of that series. Any resolution passed or decision taken
at any meeting of holders of any series duly held in accordance with the
applicable indenture will be binding on all holders of that series and related
coupons. The quorum at any meeting, and at any reconvened meeting, will be
persons holding or representing a majority in aggregate principal amount of the
outstanding securities of a series. (Section 1404)
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No Protection if a Change of Control Occurs
Unless we otherwise state in a prospectus supplement, the debt securities
will not contain any provision which may allow holders of debt securities the
right to require us to repurchase the debt securities if a change of control
occurs or if we engage in a transaction which materially increases our leverage.
A change of control or a highly leveraged transaction could adversely affect the
holders of debt securities.
Events of Default
Unless we inform you otherwise in the prospectus supplement, "Event of
Default" means any of the following (Section 501):
- failure to pay the principal of or any premium on any debt security when
due;
- failure to pay interest on any debt security within 30 days after due;
- failure to deposit any sinking fund payment within 30 days after due;
- failure to perform, or breach of, any other covenant in the indenture
(other than an agreement or covenant that we have included in the
indenture solely for the benefit of other series of debt securities) that
continues for 90 days after we are given written notice;
- our bankruptcy, insolvency or reorganization; or
- any other Event of Default for that series of debt securities described
in the applicable prospectus supplement.
An Event of Default for a particular series of debt securities may, but
does not necessarily, constitute an Event of Default for any other series of
debt securities.
If an Event of Default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain exceptions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration. (Section 502).
The indentures provide that a holder of a series of debt securities may not
file a lawsuit or otherwise institute proceedings under the indenture or appoint
a receiver or trustee unless the following happens:
- the holders give the trustee written notice;
- the holders of 25% of the series of debt securities also give such notice
and offer reasonable indemnification to the trustee;
- the holders of at least a majority of the aggregate principal amount of
the series of debt securities do not give an inconsistent notice; and
- the trustee does not institute the proceeding within 60 days of the
demand. (Section 507).
The four requirements listed above do not apply to proceedings instituted
by a holder of a series of debt securities to enforce the payment of principal,
premium or interest. (Section 508).
If we issue a series of debt securities with an original issue discount,
the prospectus supplement will describe the amount a holder of the debt
securities is entitled to receive if the series of debt securities is declared
due and payable.
The trustee is not obligated to exercise any of its rights or powers under
an indenture at the request or direction of any holders, unless the holders
offer the trustee reasonable indemnity against costs, expenses and liabilities.
(Section 602). If they provide this reasonable indemnification, the holders of a
majority in aggregate principal amount of the outstanding debt securities of any
series may direct the time, method and place of conducting any proceeding or any
remedy available to the trustee, or exercising any power conferred upon the
trustee, for any series of debt securities. The trustee is not required to take
action which the trustee determines is prejudicial to the holders of the series
of debt securities who do not request the trustee to take the action, or which
may cause the trustee to have personal liability. (Sections 512 and 601).
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Covenants
Under the indentures, we have agreed, among other things, to:
- pay the principal of and any interest and any premium on the debt
securities when due (Section 1001);
- maintain a place of payment (Section 1002);
- deposit sufficient funds with the paying agent on or before the due date
for any principal, interest or any premium payment or, if we act as our
own paying agent, segregate such funds and hold them in trust for the
benefit of the holders of the debt securities (Section 1003);
- make all payments on the debt securities to holders who are United States
aliens without withholding for any taxes or other governmental charges,
if the debt securities of a series so provides; provided that if we are
required to make any such withholding, we will pay the additional amount
of such withholding to such holders (Section 1004); and
- deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indenture (Section 1006).
Consolidation, Merger or Sale
The indentures generally permit us to consolidate or merge with or sell,
transfer or lease all or substantially all of our assets to another entity if we
comply with the terms and conditions of the indentures relating to such a
transaction, which include the following:
- the remaining or acquiring entity (if other than us) must (i) be formed
in a U.S. jurisdiction and (ii) assume all of our responsibilities and
liabilities under the indentures including the payment of all amounts
payable on the debt securities and performance of all the covenants in
the indentures;
- the transaction must not cause a default or event of default to occur;
and
- we must deliver to the trustee a certificate signed by certain of our
officers and an opinion of counsel stating that the transaction complies
with the indentures.
The remaining or acquiring entity will be substituted for us in the
indentures with the same effect as if it had been an original party to the
indentures. Thereafter, our successor may exercise our rights and powers under
the indentures, in our name or in its own name. Any act or proceeding required
or permitted to be done by our board of directors or any of our officers may be
done by the board or officers of the successor entity. If we sell all or
substantially all of our assets, we will be released from all our liabilities
and obligations under the indentures and under the debt securities. (Sections
801 and 803).
Defeasance
When we use the term defeasance, we mean discharge from some or all of our
obligations under an indenture. The following discussion of legal defeasance and
covenant defeasance (Sections 1301 to 1306) will be applicable to a series of
debt securities (other than convertible subordinated debt securities) only if we
choose to have them apply to that series.
Legal Defeasance
If we provide in an applicable prospectus supplement, and as long as we
take steps to make sure that you receive all or your payments under the debt
securities of that series and are able to transfer the debt securities of that
series, we can elect to legally release ourselves from any obligations on such
series of debt securities (such a release is called "legal defeasance") other
than:
- the rights of holders of outstanding notes to receive payments in respect
of the principal of and premium and interest on the debt securities when
these payments are due;
- our obligation to replace any temporary debt securities, register the
transfer or exchange of any debt securities, replace mutilated, lost or
stolen debt securities, compensate and reimburse the trustee, remove and
appoint a successor trustee, maintain an office or agency for payments in
respect of the debt securities and qualify the indenture under the Trust
Indenture Act;
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- the rights, powers, trusts, duties and immunities of the trustee; and
- the legal defeasance provisions of the indentures. (Section 1304)
In order for us to accomplish legal defeasance, the following must occur:
- We must irrevocably deposit with the trustee cash and/or U.S. government
and/or U.S. government agency securities that will generate enough cash
to make interest, principal and any other payments on such debt
securities on their various due dates.
- Such defeasance shall not cause the trustee to have a conflict of
interest.
- There must be a change in current U.S. federal tax law or an IRS ruling
that lets us make that deposit without causing you to be taxed on the
debt securities any differently than if we did not make the deposit and
just repaid the debt securities ourselves. Under current U.S. federal tax
law, the deposit and our legal release from the securities would be
treated as though we took back your debt securities and gave you your
share of the cash and notes or bonds deposited in trust. In that event,
you could recognize gain or loss on the debt securities you give back to
us.
- We must deliver to the trustee a legal opinion of our counsel confirming
the tax law change described above and that all of the conditions to
legal defeasance in the indenture have been satisfied.
We will not be able to achieve legal defeasance if there is a continuing
default or event of default under the indentures or if doing so would violate
any other material agreement to which we are a party. (Section 1304). If we ever
were to accomplish legal defeasance as described above, you would have to rely
solely on the trust deposit for repayment of the debt securities. You could not
look to us for repayment in the unlikely event of any shortfall.
Covenant Defeasance
Under current U.S. federal tax law, we can make the same type of deposit
described above and be released from certain covenants relating to a series of
debt securities. The release from these covenants is called covenant defeasance.
In that event, you would lose the protection of these covenants but would gain
the protection of having money and/or securities set aside in trust to repay the
series of debt securities. We may not defease an obligation, if any, to convert
a series of debt securities into shares of our common stock, preferred stock or
other securities as provided in the subordinated indenture. In order to achieve
covenant defeasance, we must do the following:
- We must deposit in trust for the benefit of all holders of the series of
debt securities cash and/or U.S. government or U.S. government agency
securities that will generate enough cash to make interest, principal and
any other payments on the debt securities on their various due dates.
- We must deliver to the trustee a legal opinion of our counsel confirming
that under current U.S. federal tax law we may make that deposit without
causing you to be taxed on the debt securities any differently than if we
did not make the deposit and just repaid the debt securities ourselves.
The opinion also must state that all of the conditions to covenant
defeasance in the indenture have been fulfilled.
Further, such defeasance may not cause the trustee to have a conflict of
interest.
We will not be able to achieve covenant defeasance if there is a continuing
default or event of default under the indenture or if doing so would violate any
other material agreements to which we are a party. The indenture describes the
types of covenants we may fail to comply with without causing an event of
default if we accomplish covenant defeasance. (Section 1303).
If we elect to make a deposit resulting in covenant defeasance, the amount
of money and/or U.S. government or U.S. government agency securities deposited
in trust should be sufficient to pay amounts due on the debt securities at the
time of their maturity. However, if the maturity of the debt securities is
accelerated due to the occurrence of an event of default, the amount in trust
may not be sufficient to pay all amounts due on the debt securities. We would
remain liable for
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the shortfall as described in the applicable indenture.
Form, Exchange, Registration and Transfer
We may issue debt securities of a series in definitive form solely as
registered securities, solely as bearer securities or as both registered
securities and bearer securities. Unless we otherwise indicate in an applicable
prospectus supplement, bearer securities will have interest coupons attached.
(Section 201) The indentures also provide that debt securities of a series may
be issuable in temporary or permanent global form. (Section 201)
Registered securities of any series will be exchangeable for other
registered securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if debt securities of
any series are issuable as both registered securities and bearer securities, at
the option of the holder, and subject to the terms of the applicable indenture,
bearer securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable for registered
securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Bearer securities surrendered in exchange
for registered securities between a regular record date or a special record date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest accrued as of
such date will not be payable in respect of the registered security issued in
exchange for such bearer security, but will be payable only to the holder of
such coupon when due in accordance with the terms of the applicable indenture.
Unless we otherwise provide with respect to any series of debt securities,
bearer securities will not be issued in exchange for registered securities.
(Section 305)
Debt securities may be presented for exchange as provided above, and
registered securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office of the security
registrar or at the office of any transfer agent designated by us for such
purpose with respect to any series of debt securities and referred to in an
applicable prospectus supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the indentures. Such
transfer or exchange will be effected upon the security registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Trustee will serve initially
as security registrar for purposes of registering registered securities and
transfers of registered securities. (Section 305) If a prospectus supplement
refers to any transfer agents (in addition to the security registrar) initially
designated by us with respect to any series of debt securities, we may at any
time rescind the designation of any such transfer agent or approve a change in
the location through which any such transfer agent acts, except that, if debt
securities of a series are issuable solely as registered securities, we will be
required to maintain a transfer agent in each place of payment for such series
and, if debt securities of a series are also issuable as bearer securities, we
will be required to maintain (in addition to the security registrar) a transfer
agent in a place of payment for such series located outside the United States.
We may at any time designate additional transfer agents with respect to any
series of debt securities. (Section 1002)
In the event of any redemption in part, we shall not be required to
- issue, register the transfer of or exchange debt securities of any series
during a 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 (A) if debt securities of the series are
issuable only as registered securities, the day of mailing of the
relevant notice of redemption and (B) if debt securities of the series
are issuable as bearer securities, the date of the first publication of
the relevant notice of redemption, or if debt securities of the series
are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or
- register the transfer of or exchange any registered security, or portion
thereof, called for redemption, except the unredeemed portion of any
registered security being redeemed in part, or
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- exchange any bearer security called for redemption, except that such a
bearer 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. (Section 305)
Payment and Paying Agents
Unless we otherwise indicate in an applicable Prospectus Supplement,
payment of principal of and any premium and interest on bearer securities will
be payable, subject to any applicable laws and regulations, at the offices of
such paying agents outside the United States as we may designate from time to
time, in the manner indicated in such prospectus supplement. (Section 1002)
Unless we otherwise indicate in an applicable prospectus supplement, payment of
interest on bearer securities on any interest payment date will be made only
against surrender to the paying agent of the coupon relating to such interest
payment date. (Section 1001) No payment with respect to any bearer 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 or by transfer to any account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal of and any premium and interest on bearer
securities denominated and payable in U.S. dollars will be made at the office of
our paying agent in New York City, 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. (Section 1002)
Unless we otherwise indicate in an applicable prospectus supplement,
payment of principal of and any premium and interest on registered securities
will be made at the office of such paying agent or paying agents as we may
designate from time to time, except that at our option payment of any interest
may be made by check mailed on or before the due date to the holder's registered
address or by wire transfer. (Section 307) Unless we otherwise indicate in an
applicable prospectus supplement, payment of any installment of interest on
registered securities will be made to the person in whose name such registered
security is registered at the close of business on the regular record date for
such interest. (Section 307)
Unless we otherwise indicate in an applicable prospectus supplement, the
trustee will act as its own paying agent for payments with respect to debt
securities which are issuable solely as registered securities, and we will
maintain a paying agent outside the United States for payments with respect to
debt securities (subject to limitations described above in the case of bearer
securities) which are issuable solely as bearer securities or as both registered
securities and bearer securities. We will name any paying agents outside the
United States and any other paying agents in the United States initially
designated by us for the debt securities in an applicable 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, except that, if debt securities of a series are issuable solely as
registered securities, we will be required to maintain a paying agent in each
place of payment for such series and, if debt securities of a series are
issuable as bearer securities, we will be required to maintain (i) a paying
agent in New York City for principal payments with respect to any registered
securities of the series (and for payments with respect to bearer securities of
the series in the circumstances described above, but not otherwise), and (ii) a
paying agent in a place of payment located outside the United States where debt
securities of such series and any coupons appertaining thereto may be presented
and surrendered for payment. (Section 1002)
All moneys paid by us to a paying agent for the payment of principal of and
any premium or interest on any debt security which remain unclaimed at the end
of one year after such principal, premium or interest shall have become due and
payable will (subject to applicable escheat laws) be repaid to us, and the
holder of such debt security or any coupon will thereafter look only to us for
payment thereof. (Section 1003)
Global Debt Securities
Debt securities of a series may be issued in whole or in part in the form
of one or more global debt securities that will be deposited with, or on behalf
of, a depository identified in the prospectus supplement relating to such
series. (Section 203) Unless and until it is exchanged in whole or in part for
the individual debt securities represented
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thereby, a global debt security may not be transferred except as a whole by the
depository for such global debt security to a nominee of such depository or by a
nominee of such depository to such depository or another nominee of such
depository or by the depository or any nominee to a successor depository or any
nominee of such successor. (Section 305)
We will describe the specific terms of the depository arrangement with
respect to a series of debt securities and certain limitations and restrictions
relating to a series of bearer securities in the form of one or more global debt
securities will be described in the prospectus supplement relating to such
series.
Governing Law
New York law will govern the indenture and the debt securities.
Notices
Except as otherwise provided in the indentures, notices to holders of
bearer securities will be given by publication at least twice in a daily
newspaper in New York City and in such other city or cities as may be specified
in such bearer securities. Notices to holders of registered securities will be
given by mail to the addresses of such holders as they appear in the security
register. (Section 106)
Title
Title to any bearer securities (including bearer securities in permanent
global form) and any coupons appertaining thereto will pass by delivery. We, the
Trustee and any agent of ours or the Trustee may treat the bearer of any bearer
security and the bearer of any coupon and the registered owner of any registered
security as the owner thereof (whether or not such debt security or coupon shall
be overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. (Section 308)
Replacement of Securities and Coupons
We will replace any mutilated debt security or a debt security with a
mutilated coupon appertaining thereto at the expense of the holder upon
surrender of such debt security to the trustee. We will replace debt securities
or coupons that became destroyed, stolen or lost at the expense of the holder
upon delivery to the trustee of the debt security and coupons or evidence of
destruction, loss or theft thereof satisfactory to us and the trustee; in the
case of any coupon which becomes destroyed, stolen or lost, we will replace such
coupon by issuance of a new debt security in exchange for the debt security to
which such coupon appertains. In the case of a destroyed, lost or stolen debt
security or coupon, an indemnity satisfactory to the trustee and us may be
required of the holder of such debt security or coupon before we will issue a
replacement debt security. (Section 306)
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will be subordinated and junior
in right of payment to the prior payment in full of certain of our senior
indebtedness. (Section 1701) The indebtedness that will be senior indebtedness
with respect to a series of subordinated debt securities is described in the
subordinated indenture as may be modified by the applicable supplemental
indenture.
The subordinated indenture provides that no payment of principal, interest
or premium may be made on the subordinated debt securities if:
- we fail to pay the principal, interest, any premium or other amounts when
due on any indebtedness described as specified senior indebtedness in the
subordinated indenture as may be modified by the applicable supplemental
indenture; or
- we default in performing any other covenant in any senior indebtedness if
the covenant default allows the holders of such specified senior
indebtedness to accelerate the maturity of the specified senior
indebtedness. (Section 1603)
A covenant default will prevent us from paying the subordinated debt
securities only for up to 179 days after the holders of the specified senior
indebtedness notify us and the trustee that a blockage period has begun. The
holders of
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specified senior indebtedness may only give one such notice during a 360 day
period. (Section 1603)
The subordination does not affect our obligation, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest on
the subordinated debt securities. In addition, the subordination does not
prevent the occurrence of any default under the subordinated indenture. (Section
1606).
The subordinated indenture will not limit the amount of senior debt that we
may incur. As a result of the subordination of the subordinated debt securities,
if we became insolvent, holders of subordinated debt securities may receive less
on a proportionate basis than other creditors.
Conversion
Under the subordinated indenture we may issue subordinated debt securities
which are convertible into or exchangeable for our common stock, preferred
stock, debt securities, other securities or property or securities or property
issued by another entity. Convertible subordinated debt securities will be
convertible on terms and at a conversion price described in the prospectus
supplement. (Section 301, 1501 and 1502) The subordinated indenture will provide
for adjustments in the conversion price if we make changes to our capital
structure. (Section 1504)
If the securities are convertible into our common stock, the conversion
price will be subject to change if any of the following events occur:
- we issue common stock as a dividend to our shareholders;
- we subdivide, combine or reclassify our common stock;
- we issue rights, which may be exercised for 45 days or less, to our
shareholders to purchase common stock at a price per share less than the
market price of the common stock at the time the rights are issued; or
- we distribute to our shareholders debt securities, equity securities or
assets, other than cash dividends paid from our surplus. (Section 1504)
Adjustments in the conversion price may have tax consequences. These tax
consequences, if applicable, will be described in the prospectus supplement. We
also will not issue fractional shares upon conversion, but will pay the value of
a fractional share to the person who would otherwise be entitled to receive such
payment. (Section 1503)
If we consolidate or merge with, or sell all or substantially all of our
assets to, another company, the convertible subordinated debt securities will be
convertible into the consideration that a holder of the convertible subordinated
debt securities would have received had the holder exercised the conversion
rights immediately before the consolidation, merger or sale. (Section 1505)
If a series of subordinated debt securities is convertible into anything
other than our common stock, the prospectus supplement will describe the
following:
- the events which will cause an adjustment in the conversion price;
- any related tax consequences of the adjustments in the conversion price;
- any special treatment of fractional shares; and
- the effect of a consolidation, merger or sale of all or substantially all
of our assets on the conversion rights.
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DESCRIPTION OF CAPITAL STOCK
Selected provisions of our organizational documents are summarized below.
The summary is not complete. You should read the organizational documents, which
are filed as exhibits to the registration statement, for other provisions that
may be important to you. In addition, you should be aware that the summary below
does not give full effect to the terms of the provisions of statutory or common
law which may affect your rights as a stockholder.
We are authorized to issue 20 million shares of common stock and 2.5
million shares of preferred stock. As of September 15, 1999, 8,557,906 shares of
common stock were outstanding and 1,045,461 shares of preferred stock were
outstanding. As of September 15, 1999, 255,492 shares of common stock were
reserved for issuance under our 1994 Stock Incentive Plan, 1996 Stock Incentive
Plan and the 1997 Employee Stock Purchase Plan.
COMMON STOCK
Listing
Our common stock is listed on the New York Stock Exchange under the symbol
"CPE." Any additional common stock that we issue will also be listed on the New
York Stock Exchange, unless otherwise indicated in a prospectus supplement.
Dividends
Shareholders may receive dividends declared by our board of directors if,
as and when our board of directors declares any such dividends. The indentures
for our existing subordinated debt and our loan agreements with banks contain
restrictions on the payment of dividends.
Fully Paid
All of our outstanding shares of common stock are fully paid and
non-assessable. Any additional shares of common stock will also be fully paid
and non-assessable.
Voting Rights
Each share of common stock is entitled to one vote in the election of
directors and other matters submitted to our shareholders. Our common stock does
not have cumulative or preemptive rights.
Other Provisions
We will notify holders of common stock of any shareholders' meetings in
accordance with applicable law. If we liquidate, dissolve or wind-up, whether
voluntarily or not, our common stockholders will share equally in the assets
remaining after we pay our creditors and holders of our preferred stock.
Transfer Agent and Registrar
American Stock Transfer and Trust Company is the registrar and transfer
agent for our common stock.
PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
general terms and provisions of the preferred stock to which a prospectus
supplement may relate. Specific terms of any series of preferred stock offered
by a prospectus supplement will be described in the prospectus supplement
relating to such series. You should read the certificate of designations
establishing a particular series of preferred stock, which will be filed with
the SEC in connection with the offering of such series for other provisions that
may be important to you.
Our board of directors can, without approval of our shareholders, issue one
or more series of preferred stock. The board can also determine the number of
shares of each series and the rights, preferences, privileges and restrictions
including the dividend rights, voting rights, conversion rights, redemption
rights and any liquidation preferences of any series of preferred stock and the
terms and conditions of issue. In some cases, the issuance of preferred stock
could delay a change in the persons and entities controlling us and make it
harder to remove present management. Under certain circumstances, preferred
stock could also restrict dividend payments to holders of our common stock or
restrict our ability to repurchase or redeem shares while there is an arrearage
in the payment of dividends to the holders of preferred stock.
The preferred stock will, when issued, be fully paid and non-assessable.
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The transfer agent, registrar and dividend disbursement agent for a series
of preferred stock will be named in a prospectus supplement. The registrar for
preferred stock will send notices to shareholders of any meetings at which
holders of the preferred stock have the right to elect directors or to vote on
any other matter.
If we offer preferred stock, the specific terms of a particular series will
be described in the prospectus supplement, and will include the following:
- the maximum number of shares to constitute the series and the distinctive
designations of such series;
- the dividend rate, whether dividends will be paid in preference to
dividends on common stock, and whether dividends will be cumulative;
- whether and the manner in which the preferred stock will be redeemable;
- any liquidation preference applicable to the preferred stock;
- whether and the manner in which the preferred stock will be subject to a
retirement or sinking fund that requires us to repurchase the shares;
- any conversion rights applicable to the preferred stock;
- any restrictions on the ability to sell or transfer the preferred stock;
- any voting rights; and
- any other preferences or other special rights or limitations.
Series A Preferred Stock
In November 1995, we issued and sold 1,315,500 shares of series A preferred
stock.
Dividend Rights. Holders of the series A preferred stock are entitled to an
annual cash dividend of $2.125 per share, payable quarterly. If dividends are
not paid in full on all outstanding shares of the series A preferred stock and
any other security ranking on parity with the series A preferred stock,
dividends declared on the series A preferred stock and such other parity stock
are paid pro rata. Unless full cumulative dividends on all outstanding shares of
series A preferred stock have been paid, no dividends (other than in common
stock or other stock ranking junior to the series A preferred stock) may be
paid, or any other distributions made, on the common stock or on any other stock
of ours ranking junior to the series A preferred stock, nor may any common stock
or any other stock of ours ranking junior to or on a parity with the series A
preferred stock be redeemed, purchased or otherwise acquired for any
consideration by us (except by conversion into or exchange for stock of Callon
ranking junior to the series A preferred stock).
Conversion. The series A preferred stock is convertible at any time prior
to being called for redemption into common stock at a rate of approximately
2.273 shares of common stock for each share of series A preferred stock, subject
to adjustment for certain antidilutive events. From time to time, we may reduce
the conversion price by any amount for a period of at least 20 days if the board
of directors determines that such reduction is in our best interests. In the
event of certain changes in control or fundamental changes, holders of series A
preferred stock have the right to convert all of their series A preferred stock
into common stock at a rate equal to the average of the last reported sales
prices of the common stock for the five business days ending on the last
business day preceding the date of the change in control or fundamental change.
We or our successor may elect to distribute cash to such holders in lieu of
common stock at an equal value.
Exchange. The series A preferred stock may be exchanged at our option for
convertible debentures beginning on January 15, 1998 at the rate of $25
principal amount of convertible debentures for each share of preferred stock,
provided that all accrued and unpaid dividends have been paid and certain other
conditions are met. See "Convertible Debentures" below.
Redemption. On or after December 31, 1998, we may from time to time redeem
the series A preferred stock at an initial redemption price of $26.488. On
December 31 of each year thereafter and until December 31, 2005, the redemption
price decreases. On December 31, 2005 and thereafter, the redemption price shall
remain at $25.
Voting Rights. The holders of series A preferred stock have no voting
rights, except as otherwise provided by law. However, if dividend
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payments are in arrears in an amount equal to or exceeding six quarterly
dividends, the number of our directors will be increased by two and the holders
of the series A preferred stock (voting separately as a class) will be entitled
to elect the additional two directors until all dividends have been paid. In
addition, we may not create, issue or increase the authorized number of shares
of any class or series of stock ranking senior to the series A preferred stock
or alter, change or repeal any of the powers, rights or preferences of the
holders of the series A preferred stock as to adversely affect such powers,
rights or preferences.
Convertible Debentures. At our option, the series A preferred stock may be
converted into convertible debentures. The convertible debentures, if issued,
will be issued under an indenture between Callon and Bank One Columbus, NA, as
trustee, a copy of which is filed as an exhibit to our Form 10-K for fiscal year
1996. The convertible debentures will be our unsecured, subordinated
obligations, limited in aggregate principal amount to the aggregate liquidation
preference of the series A preferred stock and will mature on December 31, 2010.
We must pay interest on the convertible debentures semiannually following the
issue thereof at the rate of 8.5% per annum. The convertible debentures are to
be issued in fully registered form, without coupons, in denominations of $25 or
any integral multiple thereof.
In a December 1998 private transaction, a preferred stockholder elected to
convert 59,689 shares of preferred stock into 136,867 shares of our common
stock. Subsequent to December 31, 1998, several other preferred stockholders,
through private transactions, converted 210,350 shares of preferred stock into
502,632 shares of our common stock under similar terms.
STAGGERED BOARD OF DIRECTORS
Our certificate of incorporation and bylaws divide our board of directors
into three classes, as nearly equal in number as possible, serving staggered
three-year terms. The certificate of incorporation and bylaws also provide that
the classified board provision may not be amended without the affirmative vote
of the holders of 80% or more of the voting power of our capital stock. The
classification of the board of directors has the effect of requiring at least
two annual stockholder meetings, instead of one, to effect a change in control
of the board of directors, unless the articles of incorporation are amended.
DELAWARE ANTI-TAKEOVER STATUTE
We are a Delaware corporation and are subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents us from
engaging in a business combination with an "interested stockholder" (generally,
a person owning 15% or more of our outstanding voting stock) for three years
following the time that person becomes a 15% stockholder unless either:
- before that person became a 15% stockholder, our board of directors
approved the transaction in which the stockholder became a 15%
stockholder or approved the business combination;
- upon completion of the transaction that resulted in the stockholder's
becoming a 15% stockholder, the stockholder owns at least 85% of our
voting stock outstanding at the time the transaction began (excluding
stock held by directors who are also officers and by employee stock plans
that do not provide employees with the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer); or
- after the transaction in which that person became a 15% stockholder, the
business combination is approved by our board of directors and authorized
at a stockholder meeting by at least two-thirds of the outstanding voting
stock not owned by the 15% stockholder.
Under the Section 203, these restrictions also do not apply to certain
business combinations proposed by a 15% stockholder following the disclosure of
an extraordinary transaction with a person who was not a 15% stockholder during
the previous three years or who became a 15% stockholder with the approval of a
majority of our directors. This exception applies only if the extraordinary
transaction is approved or not opposed by a majority of our directors who were
directors before any person became a 15% stockholder in the previous three
years, of the successors of these directors.
16
<PAGE> 20
LIMITATION ON DIRECTORS' LIABILITY
Delaware has adopted a law that allows corporations to limit or eliminate
the personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. The duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all material information
reasonably available to them. Absent the limitations allowed by the law,
directors are accountable to corporations and their stockholders for monetary
damages for acts of gross negligence. Although the Delaware law does not change
directors' duty of care, it allows corporations to limit available relief to
equitable remedies such as injunction or rescission. Our certificate of
incorporation limits the liability of our directors to the fullest extent
permitted by this law. Specifically, our directors will not be personally liable
for
monetary damages for any breach of their fiduciary duty as a director, except
for liability
- for any breach of their duty of loyalty to the company or our
stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- under provisions relating to unlawful payments of dividends or unlawful
stock repurchases or redemptions; or
- for any transaction from which the director derived an improper personal
benefit.
This limitation may have the effect of reducing the likelihood of
derivative litigation against directors, and may discourage or deter
stockholders or management from bringing a lawsuit against directors for breach
of their duty of care, even though such an action, if successful, might
otherwise have benefitted our stockholders.
DESCRIPTION OF SECURITIES WARRANTS
We may issue securities warrants entitling the holder to purchase our debt
securities, preferred stock or common stock as described in the prospectus
supplement relating to the issuance of the securities warrants. Securities
warrants may be issued independently or together with other of our securities
and may be attached to or separate from other securities. The securities
warrants will be issued under warrant agreements to be entered into between us
and a bank or trust company that acts as warrant agent. The warrant agent will
act solely as our agent in connection with securities warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
of securities warrants or beneficial owners of securities warrants.
The specific terms of any securities warrants will be described in the
applicable prospectus supplement.
INTRODUCTION
The prospectus supplement will describe the terms of any securities
warrants offered, including the following:
- the amount of securities warrants to be registered and the purchase price
and manner of payment to acquire the securities warrants;
- a description, including amount, of the debt securities, preferred stock
or common stock which may be purchased upon exercise;
- the exercise price which must be paid to purchase the securities upon
exercise of a securities warrant and any provisions for changes or
adjustments in the exercise price;
- any date on which the securities warrants and the related debt
securities, preferred stock or common stock will be separately
transferable;
- the dates on which the right to exercise the securities warrants shall
commence and expire;
- a discussion of certain U.S. federal income tax, accounting and other
special considerations, procedures and limitations relating to the
securities warrants; and
- any other material terms of the securities warrants.
17
<PAGE> 21
Holders of securities warrants will not have any of the rights of holders
of our debt securities, preferred stock or common stock that may be purchased
upon exercise until they exercise the securities warrants and receive the
underlying securities. These rights include the right to receive payments of
principal of, any premium on, or any interest on, the debt securities
purchasable upon such exercise or to enforce the covenants in the indentures or
to receive payments of dividends on the preferred stock or common stock which
may be purchased upon exercise or to exercise any voting right.
EXERCISE OF SECURITIES WARRANTS
After the close of business on the expiration date described in the
prospectus supplement, securities warrants will expire and the holders will no
longer have the right to exercise the securities warrants and receive the
underlying securities. Securities warrants may be exercised by delivering a
properly completed certificate in the form attached to the securities warrants
and payment of the exercise price as provided in the prospectus supplement. We
will issue and deliver our debt securities, preferred stock or common stock as
soon as possible following receipt of the certificate and payment described
above. If less than all of the securities warrants represented by a certificate
are exercised, we will issue a new certificate for the remaining securities
warrants. The foregoing terms of exercise may be modified by us in a prospectus
supplement.
DESCRIPTION OF SECURITIES PURCHASE CONTRACTS
AND SECURITIES PURCHASE UNITS AND PREPAID SECURITIES
We may also issue securities purchase contracts which obligate the holder
of the contracts to purchase, and obligate us to sell, our common stock or
preferred stock at one or more times in the future. The prospectus supplement
will describe the terms of any securities purchase contracts, including the
following to the extent applicable:
- whether the holder is obligated to purchase our common stock or preferred
stock, and the dates on which such shares must be purchased;
- the purchase price of the common stock or preferred stock, which may be
fixed at the time of issuance or determined in the future by a formula;
- any periodic payments that we must make to the holders of the securities
purchase contracts, or any periodic payments that the holders must make
to us and whether these periodic payments are unsecured or prefunded in
some manner; and
- any collateral that a holder of securities purchase contracts is
obligated to pledge to secure the holder's obligations to purchase
securities and make periodic payments under the contract.
Securities purchase contacts may be issued with our debt securities,
preferred stock or other securities as a unit, referred to as a "securities
purchase unit." If securities purchase units are issued, the debt securities,
preferred stock or other securities which are part of the units may be pledged
to secure the holder's obligation to purchase the common stock or preferred
stock and to make any periodic payments provided for in the securities purchase
contract. A securities purchase unit may also provide for the substitution of
U.S. Treasury securities or securities of other persons for the debt securities,
preferred stock or other securities initially issued as part of the securities
purchase units. Securities purchase units may also give a financial institution
or other person the right to purchase the debt securities, preferred stock or
other securities which are part of the securities purchase units. We may also
have the right or obligation to deliver newly issued prepaid securities purchase
contracts ("prepaid securities") upon release to a holder of any collateral
securing the holder's obligations under the original stock purchase contract.
Any such purchase rights will be described in a prospectus supplement.
18
<PAGE> 22
PLAN OF DISTRIBUTION
We may sell the securities
(1) through underwriters or dealers;
(2) through agents;
(3) directly to purchasers;
(4) through remarketing firms; or
(5) through a combination of any such methods of sale.
Any such underwriter, dealer or agent may be deemed to be an underwriter
within the meaning of the Securities Act of 1933.
UNDERWRITERS OR DEALERS
If underwriters are utilized in the sale, the securities will be acquired
by the underwriters for their own account. The underwriters may sell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to several conditions set forth in an agreement between us and the underwriters.
The underwriters will be obligated to purchase all of the securities offered if
any of the securities are purchased. Any public offering price and any discounts
or concessions allowed or re-allowed or paid to dealers may be changed from time
to time. We may grant underwriters who participate in the distribution of
securities an option to purchase additional securities if they sell more
securities than they purchased.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, in which selling concessions allowed
to syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, these activities may be discontinued.
If we use dealers in the sale of securities, we will sell the securities to
them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the prospectus supplement the names of the dealers and the terms of the
transaction.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchasers for the period of their appointment or to sell securities on
a continuing basis.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
REMARKETING FIRMS
The securities may be re-sold to the public following their redemption or
repayment by one or more remarketing firms. Remarketing firms may act as
principals for their own accounts or as agents for us.
RIGHTS OFFERINGS; CONVERSIONS
If we were to issue rights on a pro rata basis to our shareholders, we may
be able to use this prospectus to offer and sell the securities underlying the
rights. We may also be able to use the prospectus to offer and sell securities
to be received upon conversion of any convertible securities we may issue or
upon exercise of transferable warrants that may be issued by us or an affiliate.
GENERAL INFORMATION
Underwriters, dealers, agents and remarketing firms that participate in the
distribution of the securities may be underwriters as defined in the Securities
Act of 1933, and any discounts or commissions received by them from us and any
profit on the resale of the securities by them may be treated as underwriting
discounts and commissions under the Securities Act of 1933. Any
19
<PAGE> 23
underwriter, dealer, agent or remarketing firm will be identified and the terms
of the transaction, including their compensation, will be described in a
prospectus supplement. We may have agreements with underwriters, dealers, agents
or remarketing firms to indemnify them against certain liabilities, including
liabilities under the Securities Act of 1933, or to contribute with respect to
payments which the underwriters, dealers or agents may be required to make.
Underwriters, dealers, agents or remarketing firms, or their affiliates may be
customers of, engage in transactions with or perform services for, us or our
subsidiaries in the ordinary course of their business.
All debt securities will be new issues of securities with no established
trading market. Any underwriters to whom debt securities are sold by us for
public offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any debt securities.
We may use agents and underwriters to solicit offers by certain
institutions to purchase debt securities from us at the public offering price
set forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date stated in the prospectus
supplement. Delayed delivery contracts will be subject to only those conditions
set forth in the prospectus supplement. A commission indicated in the prospectus
supplement will be paid to underwriters and agents soliciting purchases of debt
securities pursuant to delayed delivery contracts accepted by us.
EXPERTS
INDEPENDENT ACCOUNTANTS
The audited consolidated financial statements as of December 31, 1998 and
for the three years in the period ended December 31, 1998, incorporated by
reference elsewhere in this registration statement, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
RESERVE ENGINEERS
The information incorporated by reference in this prospectus regarding our
quantities of oil and gas and future net cash flows and the present values
thereof from such reserves is based on estimates of such reserves and present
values prepared by Huddleston & Co., Inc., an independent petroleum and
geological engineering firm.
LEGAL MATTERS
The validity of the issuance of the securities will be passed upon for us
by our lawyers, Haynes and Boone, LLP, Houston, Texas. Counsel named in the
prospectus supplement will issue opinions about the validity of the securities
for any agents, dealers or underwriters.
20
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses payable by Callon Petroleum Company
(the "Company" or "Registrant") in connection with the issuance and distribution
of the securities being registered. All amounts shown are estimates, except the
registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 34,750
Printing Expenses........................................... 100,000
Legal Fees and Expenses..................................... 150,000
Accounting Fees and Expenses................................ 50,000
Fees and Expenses of Trustee and Counsel.................... 10,000
Miscellaneous Fees.......................................... 50,000
--------
Total............................................. $394,750
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware,
pursuant to which the Company is incorporated, provides generally and in
pertinent part that a Delaware corporation may indemnify its directors,
officers, employees and agents (or persons serving at the request of the Company
as a director, officer, employee or agent of another entity) against expenses,
judgments, fines, and settlements actually and reasonably incurred by them in
connection with any civil, criminal, administrative, or investigative suit or
action except actions by or in the right of the corporation if, in connection
with the matters in issue, they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 145 further provides that in connection with
the defense or settlement of any action by or in the right of the corporation, a
Delaware corporation may indemnify its directors, officers, employees and agents
(or persons serving at the request of the Company as a director, officer,
employee or agent of another entity) against expenses actually and reasonably
incurred by them if, in connection with the matters in issue, they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue, or matter as to which such person has been adjudged
liable to the corporation unless the Delaware Court of Chancery or other court
in which such action or suit is brought approves such indemnification. Section
145 further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and otherwise, and
or purchase indemnity insurance on behalf of its directors and officers. Article
Eight of the Certificate of Incorporation of the Company, as amended, and
Article IX of the Bylaws of the Company, as amended, provide, in general, that
the Company may indemnify its directors, officers, employees and agents (or
persons serving at the request of the Company as a director, officer, employee
or agent of another entity) to the full extent of Delaware law.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
(1) UNDERWRITING AGREEMENT
**1.1 -- Form of Underwriting Agreement.
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES
4.1 -- Certificate of Incorporation of the Company, as amended
(incorporated by reference from Exhibit 3.1 of the
Company's Registration Statement on Form S-4, filed
August 4, 1994, Reg. No. 33-82408)
</TABLE>
21
<PAGE> 25
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
4.2 -- Certificate of Merger of Callon Consolidated Partners,
L.P. with and into the Company, dated September 16, 1994
(incorporated by reference from Exhibit 3.2 of the
Company's Report on Form 10-K for the fiscal year ended
December 31, 1994)
4.3 -- Bylaws of the Company (incorporated by reference from
Exhibit 3.2 of the Company's Registration Statement on
Form S-4, filed August 4, 1994, Reg. No. 33-82408)
4.4 -- Specimen Common Stock Certificate (incorporated by
reference from Exhibit 4.1 of the Company's Registration
Statement on Form S-4, filed August 4, 1994, Reg. No.
33-82408)
4.5 -- Specimen Preferred Stock Certificate (incorporated by
reference from Exhibit 4.2 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.6 -- Designation of Series A Preferred Stock (incorporated by
reference from Exhibit 4.3 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.7 -- Indenture for Convertible Debentures (incorporated by
reference from Exhibit 4.4 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.8 -- Certificate of Correction of Designation of Series A
Preferred Stock (incorporated by reference from Exhibit
4.4 of the Company's Registration Statement on Form
S-1/A, filed November 22, 1996, Reg. No. 33-15501)
4.9 -- Form of Note Indenture for Company's 10% Senior
Subordinated Notes due 2001 (incorporated by reference
from Exhibit 4.6 of the Company's Registration Statement
on Form S-1/A, filed November 22, 1996, Reg. No.
333-15501)
4.10 -- Form of Note Indenture for Company's 10.25% Senior
Subordinated Notes due 2004 (incorporated by reference
from Exhibit 4.10 of the Company's Registration Statement
on Form S-2, filed June 14, 1999, Reg. No. 333-80579)
*4.11 -- Form of Senior Indenture
*4.12 -- Form of Subordinated Indenture
(5) OPINION REGARDING LEGALITY
*5.1 -- Opinion of Haynes and Boone, L.L.P.
(12) STATEMENTS REGARDING COMPUTATION OF RATIOS
*12.1 -- Computation of ratio of earnings to fixed charges.
(23) CONSENTS OF EXPERTS AND COUNSEL
*23.1 -- Consent of Haynes and Boone, L.L.P. (included in Exhibit
5.1).
*23.2 -- Consent of Arthur Andersen LLP.
*23.3 -- Consent of Huddleston & Co., Inc.
(24) POWER OF ATTORNEY
24.1 -- Powers of Attorney (included on the signature page of the
Registration Statement)
(25) STATEMENT OF ELIGIBILITY OF TRUSTEE
**25.1 -- Statement of Eligibility and Qualification on Form T-1 of
Trustee.
</TABLE>
- ---------------
* Filed herewith.
** To be filed as an exhibit to Callon Petroleum Company's Current Report on
Form 8-K in connection with a specific offering.
22
<PAGE> 26
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. 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 Securities and Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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
Securities Act of 1933 and is, therefore, unenforceable. In the event 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 Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
23
<PAGE> 27
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
Prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
24
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 28th day of
September, 1999.
CALLON PETROLEUM COMPANY
/s/ FRED L. CALLON
------------------------------------
Fred L. Callon
Chief Executive Officer and
President
25
<PAGE> 29
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Fred L. Callon and John S. Weatherly his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign, execute and file with the
Securities and Exchange Commission and any state securities regulatory board or
commission any documents relating to the proposed issuance and registration of
the securities offered pursuant to this Registration Statement on Form S-3 under
the Securities Act of 1933, as amended, including any amendment or amendments
relating thereto (and, in addition, any Registration Statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, for the offering to
which this Registration Statement relates), with all exhibits and any and all
documents required to be filed with respect thereto with any regulatory
authority, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he or she might or
could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons on
behalf of the Registrant in the capacities and on the 28th day of September,
1999:
<TABLE>
<CAPTION>
SIGNATURE CAPACITIES DATE
--------- ---------- ----
<C> <S> <C>
/s/ FRED L. CALLON Chief Executive Officer and September 28, 1999
- ----------------------------------------------------- President (Principal Executive
Fred L. Callon Officer)
/s/ JOHN S. WEATHERLY Senior Vice President and Chief September 28, 1999
- ----------------------------------------------------- Financial Officer (Principal
John S. Weatherly Accounting and Financial
Officer)
/s/ DENNIS W. CHRISTIAN Director, Senior Vice President, September 28, 1999
- ----------------------------------------------------- Chief Operating Officer
Dennis W. Christian
/s/ JOHN S. CALLON Director September 28, 1999
- -----------------------------------------------------
John S. Callon
/s/ LEIF DONS Director September 28, 1999
- -----------------------------------------------------
Leif Dons
/s/ ROBERT A. STANGER Director September 28, 1999
- -----------------------------------------------------
Robert A. Stanger
/s/ JOHN C. WALLACE Director September 28, 1999
- -----------------------------------------------------
John C. Wallace
/s/ B. F. WEATHERLY Director September 28, 1999
- -----------------------------------------------------
B. F. Weatherly
/s/ RICHARD O. WILSON Director September 28, 1999
- -----------------------------------------------------
Richard O. Wilson
</TABLE>
26
<PAGE> 30
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
(1) UNDERWRITING AGREEMENT
**1.1 -- Form of Underwriting Agreement.
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES
4.1 -- Certificate of Incorporation of the Company, as amended
(incorporated by reference from Exhibit 3.1 of the
Company's Registration Statement on Form S-4, filed
August 4, 1994, Reg. No. 33-82408)
4.2 -- Certificate of Merger of Callon Consolidated Partners,
L.P. with and into the Company, dated September 16, 1994
(incorporated by reference from Exhibit 3.2 of the
Company's Report on Form 10-K for the fiscal year ended
December 31, 1994)
4.3 -- Bylaws of the Company (incorporated by reference from
Exhibit 3.2 of the Company's Registration Statement on
Form S-4, filed August 4, 1994, Reg. No. 33-82408)
4.4 -- Specimen Common Stock Certificate (incorporated by
reference from Exhibit 4.1 of the Company's Registration
Statement on Form S-4, filed August 4, 1994, Reg. No.
33-82408)
4.5 -- Specimen Preferred Stock Certificate (incorporated by
reference from Exhibit 4.2 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.6 -- Designation of Series A Preferred Stock (incorporated by
reference from Exhibit 4.3 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.7 -- Indenture for Convertible Debentures (incorporated by
reference from Exhibit 4.4 of the Company's Registration
Statement on Form S-1/A, filed November 13, 1995, Reg.
No. 33-96700)
4.8 -- Certificate of Correction of Designation of Series A
Preferred Stock (incorporated by reference from Exhibit
4.4 of the Company's Registration Statement on Form
S-1/A, filed November 22, 1996, Reg. No. 33-15501)
4.9 -- Form of Note Indenture for Company's 10% Senior
Subordinated Notes due 2001 (incorporated by reference
from Exhibit 4.6 of the Company's Registration Statement
on Form S-1/A, filed November 22, 1996, Reg. No.
333-15501)
4.10 -- Form of Note Indenture for Company's 10.25% Senior
Subordinated Notes due 2004 (incorporated by reference
from Exhibit 4.10 of the Company's Registration Statement
on Form S-2, filed June 14, 1999, Reg. No. 333-80579)
*4.11 -- Form of Senior Indenture
*4.12 -- Form of Subordinated Indenture
(5) OPINION REGARDING LEGALITY
*5.1 -- Opinion of Haynes and Boone, L.L.P.
(12) STATEMENTS REGARDING COMPUTATION OF RATIOS
*12.1 -- Computation of ratio of earnings to fixed charges.
(23) CONSENTS OF EXPERTS AND COUNSEL
*23.1 -- Consent of Haynes and Boone, L.L.P. (included in Exhibit
5.1).
*23.2 -- Consent of Arthur Andersen LLP.
*23.3 -- Consent of Huddleston & Co., Inc.
(24) POWER OF ATTORNEY
24.1 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
<PAGE> 31
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
(25) STATEMENT OF ELIGIBILITY OF TRUSTEE
**25.1 -- Statement of Eligibility and Qualification on Form T-1 of
Trustee.
</TABLE>
- ---------------
* Filed herewith.
** To be filed as an exhibit to Callon Petroleum Company's Current Report on
Form 8-K in connection with a specific offering.
<PAGE> 1
EXHIBIT 4.11
================================================================================
CALLON PETROLEUM COMPANY
TO
-----------------------------------
TRUSTEE
INDENTURE
Dated as of _____________, ____
SENIOR DEBT SECURITIES
================================================================================
<PAGE> 2
CALLON PETROLEUM COMPANY RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF
1939 AND INDENTURE DATED AS OF ____________, ____.
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<CAPTION>
Trust Indenture Act Section Indenture Section
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<S> <C>
Section 310 (a)(1) 607
(a)(2) 607
(a)(3) Not applicable
(a)(4) Not applicable
(b) 608
609
Section 311 (a) 612
(b) 612
Section 312 (a) 701
(b) 701
(c) 701
Section 313 (a) 702
(b) 702
(c) 702
(d) 702
Section 314 (a)(1)-(3) 703
(a)(4) 1501
1006
(b) Not Applicable
(c)(1) 1501
(c)(2) 1501
(c)(3) Not Applicable
(d) Not Applicable
(e) 1501
Section 315 (a) 601
(b) 613
(c) 601
(d) 601
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<TABLE>
<S> <C>
(e) 514
Section 316 (a) 1501
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 1503
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 1507
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................................................1
Section 101. Definitions................................................................................1
Section 102. Rules of Construction.....................................................................10
ARTICLE TWO
SECURITY FORMS ..................................................................................................11
Section 201. Forms Generally...........................................................................11
Section 202. Form of Trustee's Certificate of Authentication...........................................12
Section 203. Securities in Global Form; Certain Book-entry Provisions..................................12
Section 204. Form of Legend for Book-Entry Securities..................................................13
ARTICLE THREE
THE SECURITIES...................................................................................................13
Section 301. Amount Unlimited; Issuable in Series......................................................13
Section 302. Denominations.............................................................................17
Section 303. Execution, Authentication, Delivery and Dating............................................17
Section 304. Temporary Securities......................................................................20
Section 305. Registration, Registration of Transfer and Exchange.......................................22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons..............................26
Section 307. Payment of Interest; Interest Rights Preserved............................................27
Section 308. Persons Deemed Owners.....................................................................29
Section 309. Cancellation..............................................................................29
Section 310. Computation of Interest...................................................................30
Section 311. CUSIP Numbers.............................................................................30
ARTICLE FOUR
SATISFACTION AND DISCHARGE.......................................................................................30
Section 401. Satisfaction and Discharge of Indenture...................................................30
Section 402. Application of Trust Money................................................................32
ARTICLE FIVE
REMEDIES.........................................................................................................32
Section 501. Events of Default.........................................................................32
Section 502. Acceleration of Maturity; Rescission and Annulment........................................34
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................35
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<TABLE>
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Section 504. Trustee May File Proofs of Claim..........................................................35
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................36
Section 506. Application of Money Collected............................................................36
Section 507. Limitation on Suits.......................................................................37
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.................38
Section 509. Restoration of Rights and Remedies........................................................38
Section 510. Rights and Remedies Cumulative............................................................39
Section 511. Delay or Omission Not Waiver..............................................................39
Section 512. Control by Holders........................................................................39
Section 513. Waiver of Past Defaults...................................................................40
Section 514. Undertaking for Costs.....................................................................40
Section 515. Waiver of Stay or Extension Laws..........................................................40
ARTICLE SIX
THE TRUSTEE......................................................................................................41
Section 601. Duties of Trustee.........................................................................41
Section 602. Certain Rights of Trustee.................................................................42
Section 603. Trustee Not Responsible for Recitals or Issuance of Securities............................43
Section 604. May Hold Securities.......................................................................43
Section 605. Money Held in Trust.......................................................................44
Section 606. Compensation and Reimbursement............................................................44
Section 607. Corporate Trustee Required; Eligibility...................................................45
Section 608. Disqualification; Conflicting Interests...................................................45
Section 609. Resignation and Removal; Appointment of Successor.........................................45
Section 610. Acceptance of Appointment by Successor....................................................47
Section 611. Merger, Conversion, Consolidation or Succession to Business...............................48
Section 612. Preferential Collection of Claims Against Company.........................................49
Section 613. Notice of Defaults........................................................................49
Section 614. Appointment of Authenticating Agent.......................................................49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................................................51
Section 701. Holders' Lists; Holder Communications; Disclosures Respecting Holders.....................51
Section 702. Reports By Trustee........................................................................52
Section 703. Reports by Company........................................................................52
ARTICLE EIGHT
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<TABLE>
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................................................53
Section 801. Company May Consolidate, Etc., Only on Certain Terms......................................53
Section 802. Successor Substituted.....................................................................54
ARTICLE NINE
SUPPLEMENTAL INDENTURES..........................................................................................54
Section 901. Supplemental Indentures Without Consent of Holders........................................54
Section 902. Supplemental Indentures with Consent of Holders...........................................56
Section 903. Execution of Supplemental Indentures......................................................57
Section 904. Effect of Supplemental Indentures.........................................................58
Section 905. Conformity with Trust Indenture Act.......................................................58
Section 906. Reference in Securities to Supplemental Indentures........................................58
ARTICLE TEN
COVENANTS........................................................................................................58
Section 1001. Payment of Principal, Premium and Interest...............................................58
Section 1002. Maintenance of Office or Agency..........................................................58
Section 1003. Money for Securities Payments to Be Held in Trust........................................60
Section 1004. Additional Amounts.......................................................................61
Section 1005. Purchase of Securities by Company or Subsidiary..........................................62
Section 1006. Statement by Officer as to Default.......................................................62
Section 1007. Waiver of Certain Covenants..............................................................62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.........................................................................................63
Section 1101. Applicability of Article.................................................................63
Section 1102. Election to Redeem; Notice to Trustee....................................................63
Section 1103. Selection of Securities to Be Redeemed...................................................63
Section 1104. Notice of Redemption.....................................................................64
Section 1105. Deposit of Redemption Price..............................................................65
Section 1106. Securities Payable on Redemption Date....................................................66
Section 1107. Securities Redeemed in Part..............................................................66
Section 1108. Purchase of Securities...................................................................67
ARTICLE TWELVE
SINKING FUNDS ...................................................................................................67
Section 1201. Applicability of Article.................................................................67
Section 1202. Satisfaction of Sinking Fund Payments with Securities....................................67
Section 1203. Redemption of Securities for Sinking Fund................................................68
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<TABLE>
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE...............................................................................68
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.............................68
Section 1302. Defeasance and Discharge.................................................................68
Section 1303. Covenant Defeasance......................................................................69
Section 1304. Conditions to Defeasance or Covenant Defeasance..........................................69
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous
Provisions.....................................................................................71
Section 1306. Reinstatement............................................................................72
ARTICLE FOURTEEN
HOLDERS' MEETINGS................................................................................................72
Section 1401. Purposes for Which Meetings May Be Called................................................72
Section 1402. Call, Notice and Place of Meetings.......................................................72
Section 1403. Persons Entitled to Vote at Meetings.....................................................73
Section 1404. Quorum; Action...........................................................................73
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings......................74
Section 1406. Counting Votes and Recording Action of Meetings..........................................75
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS.........................................................................................75
Section 1501. Compliance Certificates and Opinions.....................................................75
Section 1502. Form of Documents Delivered to Trustee...................................................76
Section 1503. Acts of Holders; Record Dates............................................................77
Section 1504. Notices, Etc., to Trustee and Company....................................................78
Section 1505. Notice to Holders; Waiver................................................................79
Section 1506. Language of Notices, Etc.................................................................80
Section 1507. Conflict with Trust Indenture Act........................................................80
Section 1508. Effect of Headings and Table of Contents.................................................80
Section 1509. Successors and Assigns...................................................................80
Section 1510. Separability Clause......................................................................81
Section 1511. Benefits of Indenture....................................................................81
Section 1512. Governing Law............................................................................81
Section 1513. Legal Holidays...........................................................................81
Section 1514. No Recourse Against Others...............................................................81
Section 1515. Execution in Counterparts................................................................82
Section 1516. No Adverse Interpretation of Other Agreements............................................82
</TABLE>
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<PAGE> 8
INDENTURE, dated as of _____________, ____, between CALLON PETROLEUM
COMPANY, a Delaware corporation (herein called the "Company"), having its
principal office at 200 North Canal Street, Natchez, Mississippi 39120, and
_________________ , a __________________, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1503.
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any other Person who is a director or
executive officer of (a) such specified Person or (b) any Person described in
the preceding clause (i). For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
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<PAGE> 9
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate the
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global form.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of such board
of directors, and, with respect to any Subsidiary, either the board of directors
of such Subsidiary or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
its Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and with respect to a Subsidiary, a
copy of a resolution certified by the Secretary or an Assistant Secretary of
such Subsidiary to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee. Book-Entry Securities shall not be deemed to be
Securities in global form for purposes of Sections 201 and 203 and Article Three
of this Indenture.
"Business Day", (i) when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or other
location or the Federal Reserve Banks are authorized or obligated by law or
executive order to close, and (ii) when used in any other context, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are authorized or obligated by law or executive
order to close.
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<PAGE> 10
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights, warrants or
options exercisable for, exchangeable for or convertible into such an equity
interest in such Person.
"Certification Date" means with respect to Securities of any series
(i), if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B), if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Commission" or "SEC" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at _____________________, except that, with respect to
presentation of the Securities for payment or registration of transfers or
exchanges and the location of the register, such term means the office or agency
of the Trustee at which, at any particular time, its corporate agency business
shall be conducted, which, at the date of original execution of this Indenture
is located at ____________________________.
"corporation" means a corporation, association, limited liability
company, joint-stock company or business trust.
"covenant defeasance" has the meaning specified in Section 1303.
"coupon" means any interest coupon appertaining to a Bearer Security.
-3-
<PAGE> 11
"CUSIP Number" means, with respect to the Securities, an identification
number assigned to such security pursuant to the procedures of the Committee on
Uniform Security Identification Procedures and by the CUSIP Service Bureau.
"Default" means any event that is or with the passage of time or giving
of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Book-Entry Securities,
the clearing agency registered under the Exchange Act, designated to act as
Depositary for such Securities, as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Exchange Date" has the meaning specified in Section 304.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
"Finance Person" means a subsidiary of the Company, the Common Stock of
which is owned by the Company, that does not engage in any activity other than
(i) the holding of Subordinated Indebtedness with respect to which payments of
interest on such Subordinated Indebtedness can, at the election of the issuer
thereof, be deferred for one or more payment periods, (ii) the issuance of
preferred securities and Common Stock and/or debt securities and (iii) any
activity necessary, incidental or related to the foregoing.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may
-4-
<PAGE> 12
be approved by a significant segment of the accounting profession of the United
States of America, which are effective at the date of this Indenture.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the United States Investment Company Act
of 1940 and any statute successor thereto, in each case as amended from time to
time.
"Issue Date" means, when used with respect to a Security of a
particular series, the date upon which the Securities of such series first were
issued and authenticated under this Indenture.
"Judgment Currency" has the meaning specified in Section 506.
"legal defeasance" has the meaning specified in Section 1302.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
-5-
<PAGE> 13
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which is issued
at a price lower than the principal amount payable upon the Stated Maturity
thereof and which provides for an amount less than the principal amount thereof
to be due and payable upon redemption thereof or upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities, except to the extent provided in Sections 1302
and 1303 hereof, with respect to which the Company has effected legal
defeasance or covenant defeasance as provided in Article Thirteen
hereof; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, consent, notice, waiver or other
action hereunder as of any date, and for the purpose
-6-
<PAGE> 14
of making the calculations required by the Trust Indenture Act Section 313, (A)
the principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 301, of the principal amount of such
Security (or, in the case of a Security described in Clause (A) or (B) above, of
the amount determined as provided in such Clause), (D) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (E) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or relying
upon any such request, demand, authorization, direction, notice, consent, waiver
or other action, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of or any premium or
interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301, subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security, including any Security of a different series, evidencing all or a
portion of the same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security
-7-
<PAGE> 15
authenticated and delivered under Section 306 hereof in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, 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, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the 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 301.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Department of the Trustee, and also means, with
respect to a particular corporate trust matter, any other officer of the Trustee
to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture, as amended or supplemented from time to time in accordance with the
terms hereof, and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor act thereto.
"Security Custodian" means, with respect to Securities of a series, the
Trustee for Securities of such series, as custodian with respect to the
Securities of such series issued in global form, or any successor entity
thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed pursuant to Section 307.
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<PAGE> 16
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
"Surviving Entity" has the meaning specified in Section 801.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
amended and in force at the date as of which this Indenture was executed;
provided, however, that in the event the United States Trust Indenture Act of
l939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the United States Trust Indenture Act of 1939 as
so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligation" has the meaning specified in Section 1304.
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"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 102. RULES OF CONSTRUCTION
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) 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, and the words
"date of this Indenture" and "date hereof" and other words of similar
import refer to the effective date of the original execution and
delivery of this Indenture, viz. ____________, ____.
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include
subsequent amendments and waivers but only to the extent not prohibited
by this Indenture; and
(8) unless otherwise indicated, all dollar amounts are
expressed in U.S. dollars.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including temporary or permanent global form) as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with law, or with the
rules of any securities exchange or to conform to general usage, all as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If
temporary Securities of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the forms of Securities or
coupons of any series (or any such temporary global Security) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities (or any such
temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be typed, printed,
lithographed or engraved or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
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"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------------,
as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 203. SECURITIES IN GLOBAL FORM; CERTAIN BOOK-ENTRY PROVISIONS.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced or increased, as appropriate, to
reflect exchanges or redemptions. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee (i) in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304 or (ii) otherwise in accordance with written
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such global Security. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. With respect to
the Securities of any series that are represented by a Book-Entry Security, the
Company authorizes the execution and delivery by the Trustee of a letter of
representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such Security. Any
Book-Entry Security may be deposited with the Depositary or its nominee, or
remain in the custody of the trustee or the Security Custodian therefor pursuant
to a FAST Balance Certificate Agreement or similar agreement between the Trustee
and the Depositary. If a Company Order pursuant to Section 303 or 304 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1501 and need not be accompanied by an
Opinion of Counsel.
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The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1501 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any nominee thereof
to a successor Depositary or any nominee of such successor Depositary) may be
registered except in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series,
and each such series shall rank equally and pari passu with each other series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
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(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305;
(4) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable, and the Regular Record Date for any interest payable
on any Registered Securities on any Interest Payment Date and whether,
and under what circumstances, additional amounts with respect to such
Securities shall be payable as set forth in Section 1004;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable,
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any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served;
(8) the right, if any, of the Company to redeem 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 terms and
conditions upon which Securities of the series may be so redeemed;
(9) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods (or the method of
determination of such period or periods) within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(10) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other than
the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States
of America for purposes of the definition of "Outstanding" in Section
101;
(12) if the amount of payments of principal of and any premium
or interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula or other method, the
manner in which such amounts shall be determined;
(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series
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<PAGE> 23
as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such
amount shall be determined);
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depositary with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be exchanged
for Securities registered in the name of, and any transfer of such
Book-Entry Security may be registered to, a Person other than such
Depositary or its nominee, if other than as set forth in Section 305;
(16) if either or both of the provisions of Section 1302 or
1303 are applicable to the Securities of such series, in whole or any
specified part, and any additional means of discharge pursuant to
Section 1302 or 1303 and any additional conditions to the provisions of
Section 1302 or 1303;
(17) any applicability of, and any additions to, deletion from
or change in Events of Default with respect to the Securities of such
series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 502;
(18) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(19) the applicability of, and any addition to, change in or
limitation on, the covenants set forth in Article Ten and the
definitions set forth in Section 101 that apply to Securities of the
series;
(20) any restriction or condition on the transferability of
the Securities; and
(21) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and
the duration of such extensions;
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted
by Section 901(8)).
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<PAGE> 24
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or a Vice President of the Company,
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chief Financial Officer, the Treasurer
or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance
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with the Company Order shall authenticate and deliver such Securities; provided,
however, that, (i) in the case of Securities of a series that are not to be
originally issued at one time, the Trustee shall authenticate and deliver or
make available for delivery such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series, and (ii)
unless otherwise provided with respect to such series, in connection with its
original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further, that, unless otherwise
provided with respect to such series, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth in
Exhibit A to this Indenture, dated no earlier than the Certification Date. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) that the forms of such Securities and coupons established
by or pursuant to a Board Resolution as permitted by Section 201 have
been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or
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affecting creditors' rights and to general equity principles; provided,
that such Opinion of Counsel need express no opinion as to whether a
court in the United States would render a money judgment in currency
other than that of the United States.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon issuance of the first Security
of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its authentication;
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 1501 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities. In
the case of any series issuable as Bearer Securities, such temporary Securities
may be in global form. A temporary Bearer Security shall be delivered only in
compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations;
provided, however, that no definitive Bearer Security shall be issued in
exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in
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exchange for each portion of such temporary global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euro-clear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL
S.A. as to the portion of such temporary global Security held for its account
then to be exchanged, each in the form set forth in Exhibit B to this Indenture.
The definitive Securities to be delivered in exchange for any such temporary
global Security shall be in bearer form, registered form, permanent global
bearer form or permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however, that
no definitive Bearer Security or permanent global Security shall be delivered in
exchange for a temporary Bearer Security except in compliance with the
conditions set forth in Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent and after the
Exchange Date, the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
following such beneficial owner's delivery to Euro-clear or CEDEL S.A., as the
case may be, of a certificate in the form set forth in Exhibit A to this
Indenture dated no earlier than the Certification Date. Unless otherwise
specified in such temporary global Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a
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temporary global Security on an Interest Payment Date for Securities of such
series shall be payable to Euro-clear and CEDEL S.A. on such Interest Payment
Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate
or certificates in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of each series of Registered Securities and
the registration of transfers of such Registered Securities. The Trustee shall
serve initially as "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Unless otherwise provided with respect to
any series of Securities, Bearer Securities may not be issued in exchange for
Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged
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at any such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer 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 Bearer Securities are accompanied
by payment in funds acceptable to the Company 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 Company 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
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or 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 Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Common Depositary (which
instructions shall be in writing but need not comply with Section 1501 or be
accompanied by an Opinion of Counsel) by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the
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Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series for redemption and ending on
the relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such permanent global Security shall be
returned by the Trustee to the Common Depositary or such other depositary
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of such
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or
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exchange of Securities, other than exchanges pursuant to Section 304, 906 or
1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series for
redemption and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption, or if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
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 the foregoing and except as otherwise specified as
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any series
may be registered to, any Person other than the Depositary for such Security or
its nominee or a successor Depositary or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Book-Entry Security and a successor Depositary is not appointed by the
Company within ninety (90) days of such notice, or (ii) an Event of Default has
occurred with respect to such series and is continuing and the Security
Registrar has received a request from the applicable Depositary to issue
Securities in lieu of all or a portion of the Book-Entry Security (in which case
the Company shall deliver Securities within thirty (30) days of such request) or
(iii) the Company executes and delivers to the Trustee a Company Order that such
Book-Entry Security shall be so exchangeable and the transfer thereof so
registrable. Upon the occurrence in respect of any Book-Entry Security of any
series of any one or more of the conditions specified in clause (i) or (ii) of
the preceding sentence or such other conditions as may be specified, such
Book-Entry Security may be exchanged for Securities registered in the names of,
and the transfer of such Book-Entry Security may be registered to, such Persons
(including Persons other than the Depositary with respect to such series and its
nominees) as such Depositary shall direct. Notwithstanding any other provision
of this Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section 204
except for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, a Book-Entry Security pursuant to the preceding
sentence.
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In connection with any transfer of a portion of the beneficial interest
in a Book-Entry Security to beneficial owners pursuant to this Section, the
Security Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee upon receipt o a
Company Order for the authentication and delivery of the Securities shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
In connection with the transfer of all the beneficial interest in a
Book-Entry Security to beneficial owners pursuant to this Section, the
Book-Entry Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon Company
Order authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Book-Entry Security,
an equal aggregate principal amount of Securities of authorized denominations.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND
COUPONS.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees, and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise so provided, at the option of
the Company, payment of interest on any Registered Security may be made (i) by
check mailed on or before the due date to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register; provided, that such Person shall have provided to the
Company or the Paying Agent wire transfer instructions at least five Business
Days prior to the applicable Interest Payment Date.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
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manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Registered Security
of such series, the date of the proposed payment and the Special Record
Date, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. The Special Record Date for the payment of such
Defaulted Interest shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of
Registered Securities of such series at the address of such Holder as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be then listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
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Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or impair, as between a
Depositary and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Security.
Neither the Company nor the Trustee will have any responsibility or
liability for any for any aspect of the records relating to, or payments made on
account of, Securities by the Depositary, or for maintaining, supervising or
reviewing any records of the Depositary relating to such Securities. Neither the
Company nor the Trustee shall be liable for any delay by the related Book-Entry
Security Holder or the Depositary in identifying the beneficial owners, and each
such Person may conclusively rely on, and shall be protected in relying on,
instructions from such Book-Entry Security Holder or the Depositary for all
purposes (including with respect to the registration and delivery, and the
respective principal amounts, of the Securities to be issued).
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered shall
be promptly canceled by the Trustee. All Bearer Securities and unmatured coupons
so delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be canceled or held for reissuance. Bearer Securities and unmatured
coupons held for reissuance may be reissued only in replacement of mutilated,
lost, stolen or destroyed Bearer Securities of the same series and like tenor or
the related coupons pursuant to Section 306. All Bearer Securities and unmatured
coupons held by the Trustee pending such cancellation or reissuance shall be
deemed to be delivered for all purposes of this Indenture and the Securities.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all
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Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities and coupons held by the Trustee shall be disposed of in
accordance with its customary practice.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing any Registered Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Registered Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Registered Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (1) either
(A) all Securities theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons for whose payment
money or U.S. Government Obligations has theretofore been deposited in trust or
segregated and held in trust
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by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below,
any coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness
on such Securities and coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and any interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
then due and payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, when taken together,
state that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order, rule or
regulation of any administrative or governmental body), unless such event is
either inapplicable to that particular series of Securities or has been
specifically deleted or modified in or pursuant to the terms of such series or
in the form of Security of such series:
(1) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(2) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and continuance of
such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant of
the Company in this Indenture (other than a covenant default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach
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and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises (A) for relief in respect of the Company
in an involuntary case or proceeding under the Federal Bankruptcy Code
or any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) adjudging the Company
bankrupt or insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company under the Federal
Bankruptcy Code or any applicable federal or state law, or appointing
under any such law a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of a
substantial part of its consolidated assets, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under the Federal Bankruptcy Code or any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by the Company to the entry of a decree or order for
relief in respect thereof in an involuntary case or proceeding under
the Federal Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by the Company of a petition or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by it under any such law to the filing of any such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or other similar
official) of the Company or of any substantial part of its consolidated
assets, or the making by it of an assignment for the benefit of
creditors under any such law, or the admission by it in writing of its
inability to pay its debts generally as they become due or taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding
Securities of that series,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful and is required hereunder, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities (without
duplication of any amount paid or deposited pursuant to clauses (A) and
(B) above), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, 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
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
first: To the payment of all amounts due the Trustee under
Section 606;
second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal and any premium and
interest, respectively; and
third: Any remaining amounts shall be repaid to the Company.
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In any case in which Securities are Outstanding that are denominated in
more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided with
respect to any series of Securities, the Trustee shall calculate the amount of
such payments as follows: (i) as of the day the Trustee collects an amount under
this Article, the Trustee shall, as to each Holder of a Security to whom an
amount is due and payable under this Section that is denominated in a foreign
currency, determine that amount in Dollars that would be obtained for the amount
owing such Holder, using the rate of exchange at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York Dollars
with such amount owing; (ii) calculate the sum of all Dollar amounts determined
under (i) and add thereto any amounts due and payable in Dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due and
payable in Dollars, as the case may be, as a numerator, and the sum calculated
in (ii) as a denominator, calculate as to each Holder of a Security to whom an
amount is owed under this Section the fraction of the amount collected under
this Article payable to such Holder. Any expenses incurred by the Trustee in
actually converting amounts owing Holders of Securities denominated in a
currency other than that in which any amount is collected under this Article
shall be likewise (in accordance with this paragraph) borne ratably by all
Holders of Securities to whom amounts are payable under this Section. Any
calculation done by the Trustee will be presumptively conclusive and binding
absent manifest error.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, 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 Business Day in The City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under this Section caused
by a change in exchange rates between the time the amount of a judgment against
the Company is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Sections 305 and 307) any interest on such Security or payment of
such coupon on the respective Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the
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Company, the Trustee and the Holders of Securities and coupons shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, 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.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or involve the Trustee in personal liability
or be unjustly prejudicial to the Holders of Securities of such series
not taking part in such direction,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders not
joining therein.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past or existing Default or Event of
Default hereunder with respect to the Securities of such series and its
consequences, except a Default or Event of Default,
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Any such waiver may (but need not) be given in connection with a tender
offer or exchange offer for the Securities of the series affected.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
to take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing with
respect to Securities of any series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with
respect to Securities of any series:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, and shall be fully protected in so
relying, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture;
provided, however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph shall not limit the effect of
Section 601(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512.
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SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any Officers' Certificate,
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely conclusively upon an
Officers' Certificate;
(4) the Trustee may consult with counsel reasonably selected
by it and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may reasonably see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the
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Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(8) 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 or rights or powers conferred upon
it by this Indenture; and
(9) the Trustee shall not be deemed to have notice or
knowledge of any matter unless a Responsible Officer has actual
knowledge thereof or unless written notice thereof is received by the
Trustee at its Corporate Trust Office and such notice references the
Securities generally, the Company or this Indenture.
The Trustee shall not be required to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of any Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311 in the case of the Trustee, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
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SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
from time to time upon receipt by the Trustee of a Company Order except as
otherwise provided in this Indenture.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in
writing by the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's willful misconduct, negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, liability, or expense incurred without
willful misconduct, negligence or bad faith on its part, (i) arising
out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder or (ii) in connection with
enforcing this indemnification provision.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or Section 501(6), such expenses
and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
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SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this (1) Indenture with
respect to Securities of more than one series and (2) any other indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 610 hereof shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case,
(A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or
(B) subject to TIA Section 315(e), any Holder who has
been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 610. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 610, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
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accepted appointment in the manner required by Section 610, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. The evidence of such successorship
may, but need not be, evidenced by a supplemental indenture.
(f) The Company shall give notice of each resignation and each removal
of the Trustee to the Holders of Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for in Section 1505. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee but on the request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of all amounts due it under Section 606, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution
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and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. As soon as practicable, the successor Trustee
shall give notice to the Company of its succession. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities; and in case at that time any of the Securities shall not have been
authenticated, any successor 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 certificates shall have the full force which it is
anywhere in the Securities of like tenor or in this Indenture provided;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 613. NOTICE OF DEFAULTS.
Within 60 days after the occurrence of any Default with respect to any
series of Securities issued hereunder, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any, on) or interest on any series of
Securities, 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 and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of such
series.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee, with the prior written consent of the Company and after
giving notice of the appointment described in this Section 614 in the manner
provided in Section 1505 to all Holders or Registered Securities, if any,
affected by such appointment, may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia (or, if Bearer Securities, organized and doing
business under the laws of the country in which the Bearer Securities are
eligible), authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority (or, if Bearer
Securities, an authority of the country in which the Bearer Securities are
eligible). If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
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examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may, and if it shall cease to be eligible
shall, resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 1505 to all Holders of Registered Securities, if any, of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------------
As Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
Authorized Signatory"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be such
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. HOLDERS' LISTS; HOLDER COMMUNICATIONS; DISCLOSURES
RESPECTING HOLDERS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders of each series of the Securities. Neither the Company nor the
Trustee shall be under any responsibility with regard to the accuracy of such
lists. If the Trustee is not the Security Registrar, the Company shall furnish
to the Trustee semi-annually before each Regular Record Date, and at such other
times as the Trustee may reasonably request in writing, a list, in such form as
the Trustee may reasonably request, as of such date of the names and addresses
of the Holders of each series of the Securities then known to the Company. The
Company and the Trustee shall also satisfy any other requirements imposed upon
each of them by TIA Section 312(a).
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Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the
Securities.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Security Registrar and the Trustee that none
of the Company, the Security Registrar or the Trustee, or any agent of any of
them, shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, that each of
such Persons shall have the protection of TIA Section 312(c) and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with May 15, 2000,
the Trustee shall transmit by mail to the Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 in
accordance with and to the extent required under TIA Section 313(a). The Trustee
shall also comply with TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
Commencing at the time this Indenture is qualified under the Trust
Indenture Act, a copy of each Trustee's report, at the time of its mailing to
Holders of Securities, shall be mailed to the Company and filed with the
Commission and each stock exchange, if any, on which the Securities are listed.
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and
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covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports (without exhibits except to the extent required by TIA
Section 313(c)) required to be filed by the Company pursuant to paragraph (a) or
(b) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in any single transaction or a series of related
transactions, merge or consolidate with or into any other Person (other than a
merger of a Subsidiary into the Company), or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all the Properties of the
Company to any Person or group of Affiliated Persons, unless at the time and
after giving affect thereto:
(a) either (i) if the transaction is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the Properties of the Company are sold,
assigned, conveyed, transferred, leased or otherwise disposed of (any such
surviving Person or transferee Person being called the "Surviving Entity") shall
be a Person organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall, in either
case, expressly assume by a supplemental indenture to this Indenture executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture, and, in each
case, this Indenture shall remain in full force and effect;
(b) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any indebtedness not previously
an obligation of the Company which becomes the obligation of the Company in
connection with or as a result of such transaction or transactions as having
been incurred at the time of such transaction or transactions), no Default or
Event of Default shall have occurred and be continuing; and
(c) the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) shall have delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, (i) an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer, lease
or other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture,
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comply with this Indenture and (ii) an Opinion of Counsel stating that the
requirements of Section 801(a) have been satisfied.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with or merger of the Company
into any other Person or any sale, assignment, lease, conveyance, transfer or
other disposition of all or substantially all of the Properties of the Company
in accordance with Section 801 hereof, the Surviving Entity shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such Surviving Entity had been
named as the Company herein, and in the event of any such sale, assignment,
lease, conveyance, transfer or other disposition, the Company (which term shall
for this purpose mean the Person named as the "Company" in the first paragraph
of this Indenture or any successor Person which shall theretofore become such in
the manner described in Section 801 hereof), except in the case of a lease,
shall be discharged from all obligations and covenants under this Indenture and
the Securities and coupons, and the Company may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee upon Company
Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto or otherwise amend this Indenture, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), to provide any additional rights or benefits
to such Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the
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benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for
the benefit of such series); or
(4) 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 610; or
(5) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided, however,
that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(6) to secure the Securities pursuant to the requirements of
this Indenture or otherwise; or
(7) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(8) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
(9) to provide for uncertificated Securities of any series in
addition to or in place of certificated Securities of such series; or
(10) to comply with the requirements of the Commission in
order to affect or maintain the qualification of this Indenture under
the Trust Indenture Act; or
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(11) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301; or
(12) to make any change that does not adversely affect the
interests of any Holder.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 903 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture (which consent may, but need not, be given in
connection with any tender offer or exchange offer for the Securities of each
series affected), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
upon Company request may enter into an indenture or indentures supplemental
hereto, amendments to this Indenture or waivers for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture, amendment or waiver
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or adversely affect any
right of repayment at the option of a Holder of any Security, or reduce
the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 1002,
or
(4) modify any of the provisions of this Section, Section 513
or Section 1007 except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1007 or the deletion of
this proviso, in accordance with the requirements of Sections 610 and
901(4).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, waiver or supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive
and (subject to Section 601) shall be fully protected in relying upon an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture or amendment executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series and of like tenor.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be
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surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1004); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee and prompt notices to the Holders as
provided in Section 1505 of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1004) at any Paying Agent
for such series located outside the United States, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be
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made at the office of the Company's Paying Agent in The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium,
interest or additional amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to so maintain an office or
agency in accordance with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any other
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before 11:00 a.m., Eastern
time, on each due date of the principal of (or premium, if any, on) or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) and interest so becoming due until such sum shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before 11:00 a.m., Eastern time, on each
due date of the principal of (or premium, if any, on) or interest on any
Securities of that series, deposit with a Paying Agent immediately available
funds in a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
(other than the Trustee or itself) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will: (1) hold all sums
held by it for the payment of the principal of (and premium, if any, on) or
interest on Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided; (2) give the Trustee notice of any default by
the Company (or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or interest; and (3) at
any time during the continuance of any such default upon the
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written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
The Trustee and each Paying Agent shall promptly pay to the Company
upon Company Request any money held by them at any time in excess of amounts
required to pay principal of, premium, if any, or interest on the Securities of
any series.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any, on) or interest
on any Security of any series and remaining unclaimed for one year after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of
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additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made. If the Securities of a series provide for the
payment of additional amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and will
not permit any of its Subsidiaries to, purchase any Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Securities of that
series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
SECTION 1006. STATEMENT BY OFFICER AS TO DEFAULT.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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SECTION 1007. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series or as otherwise required by law, the Company may, with
respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(19), 901(2) or 901(11) for the benefit of the Holders of
such series, if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of such
series shall, by Act of such Holders and on behalf of the Holders of all
Securities of such series, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution, Officer's Certificate or in another manner specified as
contemplated by Section 301 for such Securities. In the case of any redemption
at the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities of such
series to be redeemed. In the case of any redemption of Securities (i) prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (ii) pursuant to an election
of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION OF SECURITIES TO BE REDEEMED.
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If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security) the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Company or the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Company or the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Registered Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series or of the principal amount of global Securities of such series. If
less than all of the Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Company or the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify
the other in writing of the Securities selected for redemption as aforesaid and,
in the case of any Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
1505 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 1505 need
not identify particular Registered Securities to be redeemed.
If any of the Securities to be redeemed is in the form of a Book-Entry
Security, then the Company shall modify the notice of redemption to the extent
necessary to accord with the procedures of the Depositary applicable to
redemptions.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Failure to give such
notice by mailing to any Holder of Securities or any defect therein shall not
affect the validity of any proceedings for the redemption of other Securities.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m., Eastern time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) immediately available funds in an amount sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date. Upon Company Order, the Paying Agent shall promptly
return to the Company any money so deposited which is not required for such
purpose.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
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 the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement
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by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Registered Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 1108. PURCHASE OF SECURITIES.
The Company shall have the right at any time and from time to time to
purchase securities in the open market or otherwise at any price.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such series required
to be made pursuant to the terms of such Securities as and to the extent
provided for by the terms of such Securities, provided that the Securities to be
so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee
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at the Redemption Price, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to the Outstanding
Securities of any series upon compliance with the conditions set forth below in
this Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of any series on
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense and direction of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of the
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in
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respect of the principal of (and premium, if any, on and interest on the
Securities of such series when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002,
1003 and 1004, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801 and
1005 and any covenant added to this Indenture pursuant to Sections 301(19),
901(2) and 901(11), and (ii) the occurrence of any event specified in Section
501(4) (with respect to Sections 801 and 1005 and any such covenants added to
this Indenture pursuant to Sections 301 (19), 901(2) and 901 (11)) and 501(7)
shall be deemed to not be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Article or Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly, by
reason of any reference elsewhere herein to any such Article or Section or by
reason of any reference in any such Article or Section to any other provision
herein or in any other document, but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) 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, (A) cash in U.S. dollars in
an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) 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
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and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and
premium, if any, on) and interest on the Outstanding Securities and any
coupons pertaining thereto on the Stated Maturity thereof in accordance
with the terms of this Indenture and of the Securities of such series.
For this purpose, "U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit.
(3) Such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest under this Indenture
and the Trust Indenture Act with respect to any securities of the
Company.
(4) Such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable federal income tax
laws, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such legal defeasance and will be subject to
federal income tax on the same amounts, in the same
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manner and at the same times as would have been the case if such legal
defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss 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.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, which, taken together,
state that all conditions precedent provided for relating to either the
legal defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act unless such trust shall be
qualified under such Act or exempt from regulation thereunder.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities of such series and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company 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 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S.
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Government Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent legal defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 1302 or 1303, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (or premium, if any, on) or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Securities of such series to receive such
payment from the money held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1505, not less than 21 nor more than
120 days prior to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting duly
reconvened at which a quorum is present as aforesaid) may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however,
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that, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting (or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid) by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1503 and the
appointment of any proxy shall be proved in the manner specified in Section 1503
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1503 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1503 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the
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chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1006) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 1501
and the statements required by this Section 1501 shall comply in all respects
with TIA Sections 314(c) and (e).
SECTION 1502. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1503. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or deemed signed pursuant to the policies
and procedures of the Depositary holding the affected Securities, or otherwise.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are received by the Trustee
and, where it is hereby expressly required, by the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing or
deemed to be signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Registered Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to
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be given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such series
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to be taken
by the Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(g) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
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SECTION 1504. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered in person, by facsimile
transmission (Secretary (601) 446-1410) or mailed, by registered mail,
return receipt requested, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument to the attention of the Chief
Financial Officer, with a copy to be sent to Callon Petroleum Company,
200 North Canal Street, Natchez, Mississippi 39120, Facsimile No. (601)
446-1410, Attention: Controller, or at any other address or facsimile
number previously furnished in writing to the Trustee by the Company.
SECTION 1505. NOTICE TO HOLDERS; WAIVER
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice;
and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date (if any), and not
later than the latest date (if any), prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor
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any defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1506. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1507. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is subject to and shall be governed by the provisions of
the Trust Indenture Act that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act which is required under the Trust Indenture Act to be a part of
and govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1508. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 1509. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 1510. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1511. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1512. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1513. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons (other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
SECTION 1514. NO RECOURSE AGAINST OTHERS.
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A director, officer, employee, stockholder, incorporator or Affiliate,
as such, past, present or future, of the Company shall not have any personal
liability under the Securities or this Indenture by reason of his or its status
as a director, officer, employee, stockholder, incorporator or Affiliate or any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder, by accepting any of the Securities,
waives and releases all such liability to the extent permitted by applicable
law.
SECTION 1515. EXECUTION IN COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 1516. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
CALLON PETROLEUM COMPANY
By:
------------------------------
Name:
---------------------
Title:
--------------------
---------------------,
AS TRUSTEE
By:
------------------------------
Name:
---------------------
Title:
--------------------
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EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNER OF INTEREST IN
A TEMPORARY GLOBAL SECURITY
CALLON PETROLEUM COMPANY
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that are
(A) foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States person(s)
who acquired Securities through the foreign branches of the United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)), or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is being
delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further
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to certify that, except as set forth below, the Securities are being exercised
by and on behalf of non-U.S. person(s). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Act. As used
herein, "United States" or "U.S." means the United States of America (including
the States and District of Columbia); and its "possessions" include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $_________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: _______________, 199__.
NAME OF PERSON MAKING CERTIFICATION
By:
---------------------------------
- ------------- * To be dated no earlier than the Certification Date.
A-2
<PAGE> 93
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE EURO-CLEAR OPERATOR OR
CEDEL S.A.
CALLON PETROLEUM COMPANY
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of September ___, 1999,
between Callon Petroleum Company and _________________, as Trustee, as of the
date hereof, [ ] principal amount of the above-captioned Securities (i) is
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States persons"), (ii) is owned by United States persons that
are (A) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.16512(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States persons who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (A) or (B), each such United
States financial institution has agreed, on its own behalf or through its agent,
that it will comply with the requirements of Section 165(1)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.1635(c)(2)(i)(D)(7)), and to the further effect that the
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then
this is also to certify with respect to such principal amount of Securities set
forth above that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organizations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect set forth in the Indenture.
B-1
<PAGE> 94
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, ____ .
(dated the Exchange Date or the Interest Payment Date)
----------------------------------------
By:
-------------------------------------
B-2
<PAGE> 1
EXHIBIT 4.12
===============================================================================
CALLON PETROLEUM COMPANY
TO
__________________________________
TRUSTEE
SUBORDINATED INDENTURE
Dated as of ____________, _____
SUBORDINATED SENIOR DEBT SECURITIES
===============================================================================
<PAGE> 2
CALLON PETROLEUM COMPANY RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE DATED AS OF ___________, ____.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310 (a)(1) 607
(a)(2) 607
(a)(3) Not applicable
(a)(4) Not applicable
(b) 608
609
Section 311 (a) 612
(b) 612
Section 312 (a) 701
(b) 701
(c) 701
Section 313 (a) 702
(b) 702
(c) 702
(d) 702
Section 314 (a)(1)-(3) 703
(a)(4) 1701
1006
(b) Not Applicable
(c)(1) 1701
(c)(2) 1701
(c)(3) Not Applicable
(d) Not Applicable
(e) 1701
Section 315 (a) 601
(b) 613
(c) 601
(d) 601
(e) 514
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 316 (a) 1701
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 1703
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 1707
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
PAGE
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................-1-
Section 101. Definitions..............................................................................-1-
Section 102. Rules of Construction...................................................................-15-
ARTICLE TWO
SECURITY FORMS........................................................................................-16-
Section 201. Forms Generally.........................................................................-16-
Section 202. Form of Trustee's Certificate of Authentication.........................................-16-
Section 203. Securities in Global Form; Certain Book-Entry Provisions................................-17-
Section 204. Form of Legend for Book-Entry Securities................................................-18-
ARTICLE THREE
THE SECURITIES........................................................................................-18-
Section 301. Amount Unlimited; Issuable in Series....................................................-18-
Section 302. Denominations...........................................................................-22-
Section 303. Execution, Authentication, Delivery and Dating..........................................-22-
Section 304. Temporary Securities....................................................................-25-
Section 305. Registration, Registration of Transfer and Exchange.....................................-27-
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons............................-31-
Section 307. Payment of Interest; Interest Rights Preserved..........................................-32-
Section 308. Persons Deemed Owners...................................................................-34-
Section 309. Cancellation............................................................................-34-
Section 310. Computation of Interest.................................................................-35-
Section 311. CUSIP Numbers...........................................................................-35-
ARTICLE FOUR
SATISFACTION AND DISCHARGE............................................................................-35-
Section 401. Satisfaction and Discharge of Indenture.................................................-35-
Section 402. Application of Trust Money..............................................................-37-
ARTICLE FIVE
REMEDIES..............................................................................................-37-
Section 501. Events of Default.......................................................................-37-
Section 502. Acceleration of Maturity; Rescission and Annulment......................................-39-
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.........................-40-
Section 504. Trustee May File Proofs of Claim........................................................-40-
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons..................-41-
Section 506. Application of Money Collected..........................................................-41-
Section 507. Limitation on Suits.....................................................................-42-
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...............-43-
Section 509. Restoration of Rights and Remedies......................................................-43-
Section 510. Rights and Remedies Cumulative..........................................................-44-
Section 511. Delay or Omission Not Waiver............................................................-44-
Section 512. Control by Holders......................................................................-44-
Section 513. Waiver of Past Defaults.................................................................-45-
Section 514. Undertaking for Costs...................................................................-45-
Section 515. Waiver of Stay or Extension Laws........................................................-45-
ARTICLE SIX
THE TRUSTEE...........................................................................................-46-
Section 601. Duties of Trustee.......................................................................-46-
Section 602. Certain Rights of Trustee...............................................................-47-
Section 603. Trustee Not Responsible for Recitals or Issuance of Securities..........................-48-
Section 604. May Hold Securities.....................................................................-48-
Section 605. Money Held in Trust.....................................................................-49-
Section 606. Compensation and Reimbursement..........................................................-49-
Section 607. Corporate Trustee Required; Eligibility.................................................-50-
Section 608. Disqualification; Conflicting Interests.................................................-50-
Section 609. Resignation and Removal; Appointment of Successor.......................................-50-
Section 610. Acceptance of Appointment by Successor..................................................-52-
Section 611. Merger, Conversion, Consolidation or Succession to Business.............................-53-
Section 612. Preferential Collection of Claims Against Company.......................................-54-
Section 613. Notice of Defaults......................................................................-54-
Section 614. Appointment of Authenticating Agent.....................................................-54-
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.....................................................-56-
Section 701 Holders' Lists; Holder Communications; Disclosures Respecting Holders....................-56-
Section 702 Reports By Trustee.......................................................................-57-
Section 703 Reports by Company.......................................................................-57-
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..................................................-58-
Section 801. Company May Consolidate, Etc., Only on Certain Terms....................................-58-
Section 802. Successor Substituted...................................................................-59-
ARTICLE NINE
SUPPLEMENTAL INDENTURES...............................................................................-59-
Section 901. Supplemental Indentures Without Consent of Holders......................................-59-
Section 902. Supplemental Indentures with Consent of Holders.........................................-61-
Section 903. Execution of Supplemental Indentures....................................................-62-
Section 904. Effect of Supplemental Indentures.......................................................-63-
Section 905. Conformity with Trust Indenture Act.....................................................-63-
Section 906. Reference in Securities to Supplemental Indentures......................................-63-
Section 907. Subordination Unimpaired................................................................-63-
ARTICLE TEN
COVENANTS.............................................................................................-63-
Section 1001. Payment of Principal, Premium and Interest.............................................-63-
Section 1002. Maintenance of Office or Agency........................................................-64-
Section 1003. Money for Securities Payments to Be Held in Trust......................................-65-
Section 1004. Additional Amounts.....................................................................-66-
Section 1005. Purchase of Securities by Company or Subsidiary........................................-67-
Section 1006. Statement by Officer as to Default.....................................................-68-
Section 1007. Waiver of Certain Covenants............................................................-68-
ARTICLE ELEVEN
REDEMPTION OF SECURITIES..............................................................................-68-
Section 1101. Applicability of Article...............................................................-68-
Section 1102. Election to Redeem; Notice to Trustee..................................................-68-
Section 1103. Selection of Securities to Be Redeemed.................................................-69-
Section 1104. Notice of Redemption...................................................................-70-
Section 1105. Deposit of Redemption Price............................................................-71-
Section 1106. Securities Payable on Redemption Date..................................................-71-
Section 1107. Securities Redeemed in Part............................................................-72-
Section 1108. Purchase of Securities.................................................................-72-
ARTICLE TWELVE
SINKING FUNDS.........................................................................................-72-
Section 1201. Applicability of Article...............................................................-72-
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................................-73-
Section 1203. Redemption of Securities for Sinking Fund..............................................-73-
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE....................................................................-74-
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance ..........................-74-
Section 1302. Defeasance and Discharge...............................................................-74-
Section 1303. Covenant Defeasance....................................................................-74-
Section 1304. Conditions to Defeasance or Covenant Defeasance........................................-75-
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous
Provisions...................................................................................-77-
Section 1306. Reinstatement..........................................................................-77-
ARTICLE FOURTEEN
HOLDERS' MEETINGS.....................................................................................-78-
Section 1401. Purposes for Which Meetings May Be Called..............................................-78-
Section 1402. Call, Notice and Place of Meetings.....................................................-78-
Section 1403. Persons Entitled to Vote at Meetings...................................................-78-
Section 1404. Quorum; Action.........................................................................-79-
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings....................-79-
Section 1406. Counting Votes and Recording Action of Meetings........................................-80-
ARTICLE FIFTEEN
CONVERSION OF SECURITIES..............................................................................-81-
Section 1501. Applicability of Article...............................................................-81-
Section 1502. Exercise of Conversion Privilege.......................................................-81-
Section 1503. Fractional Interests...................................................................-82-
Section 1504. Adjustment of Conversion Price.........................................................-83-
Section 1505. Continuation of Conversion Privilege in Case of Merger, Consolidation or
Sale of Assets...............................................................................-86-
Section 1506. Notice of Certain Events...............................................................-87-
Section 1507. Taxes on Conversion....................................................................-87-
Section 1508. Company to Provide Stock...............................................................-88-
Section 1509. Disclaimer of Responsibility for Certain Matters.......................................-89-
Section 1510. Return of Funds Deposited for Redemption of Converted Securities ......................-89-
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES...........................................................................-89-
</TABLE>
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<PAGE> 8
<TABLE>
<S> <C>
Section 1601. Securities Subordinate to Senior Indebtedness..........................................-89-
Section 1602. Payment over of Proceeds upon Dissolution, etc.........................................-90-
Section 1603. Suspension of Payment When Senior Indebtedness in Default..............................-91-
Section 1604. Payment Permitted If No Default........................................................-92-
Section 1605. Subrogation to Rights of Holders of Senior Indebtedness................................-92-
Section 1606. Provisions Solely to Define Relative Rights............................................-93-
Section 1607. Trustee to Effectuate Subordination....................................................-93-
Section 1608. No Waiver of Subordination Provision...................................................-93-
Section 1609. Notice to Trustee......................................................................-94-
Section 1610. Reliance on Judicial Order or Certificate of Liquidating Agent Bank ...................-95-
Section 1611. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's
Rights.......................................................................................-95-
Section 1612. Article Applicable to Paying Agents....................................................-95-
Section 1613. No Suspension of Remedies..............................................................-95-
Section 1614. Trust Money Not Subordinated...........................................................-96-
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS..............................................................................-96-
Section 1701. Compliance Certificates and Opinions...................................................-96-
Section 1702. Form of Documents Delivered to Trustee.................................................-97-
Section 1703. Acts of Holders; Record Dates..........................................................-97-
Section 1704. Notices, Etc., to Trustee and Company..................................................-99-
Section 1705. Notice to Holders; Waiver.............................................................-100-
Section 1706. Language of Notices, Etc..............................................................-101-
Section 1707. Conflict with Trust Indenture Act.....................................................-101-
Section 1708. Effect of Headings and Table of Contents..............................................-101-
Section 1709. Successors and Assigns................................................................-101-
Section 1710. Separability Clause...................................................................-101-
Section 1711. Benefits of Indenture.................................................................-101-
Section 1712. Governing Law.........................................................................-102-
Section 1713. Legal Holidays........................................................................-102-
Section 1714. No Recourse Against Others............................................................-102-
Section 1715. Execution in Counterparts.............................................................-102-
Section 1716. No Adverse Interpretation of Other Agreements.........................................-102-
</TABLE>
-v-
<PAGE> 9
SUBORDINATED INDENTURE, dated as of __________, ____, between CALLON
PETROLEUM COMPANY, a Delaware corporation (herein called the "Company"), having
its principal office at 200 North Canal Street, Natchez, Mississippi 39120, and
_________________, a ________________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1703.
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any other Person who is a director or
executive officer of (a) such specified Person or (b) any Person described in
the preceding clause (i). For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities,
<PAGE> 10
by agreement or otherwise; provided that beneficial ownership of 10% or more of
the Voting Stock of a Person shall be deemed to be control.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate the
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global form.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of such board
of directors, and, with respect to any Subsidiary, either the board of directors
of such Subsidiary or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
its Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and with respect to a Subsidiary, a
copy of a resolution certified by the Secretary or an Assistant Secretary of
such Subsidiary to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee. Book-Entry Securities shall not be deemed to be
Securities in global form for purposes of Sections 201 and 203 and Article Three
of this Indenture.
"Business Day", (i) when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or other
location or the Federal Reserve Banks are authorized or obligated by law or
executive order to close, and (ii) when used in any other context, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
-2-
<PAGE> 11
banking institutions in New York are authorized or obligated by law or executive
order to close.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any Property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under GAAP, and, for the purpose
of this Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights, warrants or
options exercisable for, exchangeable for or convertible into such an equity
interest in such Person.
"Certification Date" means with respect to Securities of any series
(i), if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B), if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Commission" or "SEC" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding-up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
-3-
<PAGE> 12
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Conversion Agent" means any Person authorized by the Company to
convert any Securities on behalf of the Company.
"Conversion Price" has the meaning specified in Section 1504.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at _____________, _____________, ______________, except
that, with respect to presentation of the Securities for payment or registration
of transfers or exchanges and the location of the register, such term means the
office or agency of the Trustee at which, at any particular time, its corporate
agency business shall be conducted, which, at the date of original execution of
this Indenture is located at ______________________, _______________________,
________________________________.]
"corporation" means a corporation, association, limited liability
company, joint-stock company or business trust.
"covenant defeasance" has the meaning specified in Section 1303.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Credit Facility" means that certain Amended and Restated Credit
Agreement, dated as of October 31, 1996, among the Company, Callon Petroleum
Operating Company, a Delaware corporation and wholly owned Subsidiary of the
Company ("Operating"), Callon Offshore Production, Inc., a Mississippi
corporation and wholly owned Subsidiary of Operating, the several banks and
other financial institutions from time to time parties thereto (the "Banks"),
and The Chase Manhattan Bank, as agent for the Banks, as amended, and as the
same may be further amended, modified, supplemented, extended, restated,
replaced, renewed or refinanced from time to time.
"CUSIP Number" means, with respect to the Securities, an identification
number assigned to such security pursuant to the procedures of the Committee on
Uniform Security Identification Procedures and by the CUSIP Service Bureau.
"Date of Conversion" has the meaning set forth in Section 1502.
"Default" means any event that is or with the passage of time or giving
of notice or both would be an Event of Default.
-4-
<PAGE> 13
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Book-Entry Securities,
the clearing agency registered under the Exchange Act, designated to act as
Depositary for such Securities, as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Exchange Date" has the meaning specified in Section 304.
"Fair Market Value" means the fair market value of a Property
(including shares of Capital Stock) as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution, which
determination shall be conclusive for purposes of this Indenture; provided,
however, that unless otherwise specified herein, the Board of Directors
-5-
<PAGE> 14
shall be under no obligation to obtain any valuation or assessment from any
investment banker, appraiser or other third party.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
"Finance Person" means subsidiary of the Company, the Common Stock of
which is owned by the Company, that does not engage in any activity other than
(i) the holding of Subordinated Indebtedness with respect to which payments of
interest on such Subordinated Indebtedness can, at the election of the issuer
thereof, be deferred for one or more payment periods, (ii) the issuance of
Common Stock and/or debt securities and (iii) any activity necessary, incidental
or related to the foregoing.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States of America, which are
effective at the date of this Indenture.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of Property or services (excluding any trade accounts payable and
other accrued current liabilities incurred in the ordinary course of business),
and all liabilities of such Person incurred in connection with any letters of
credit, bankers' acceptances or other similar credit transactions or any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock outstanding on the date of this Indenture or thereafter, if,
and to the extent, any of the foregoing would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, (b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, if, and to the extent, any of the foregoing would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP, (c) all Indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such Property), but excluding trade accounts payable arising in the ordinary
course of business, (d) all Capitalized Lease Obligations of such Person, (e)
all
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<PAGE> 15
Indebtedness referred to in the preceding clauses of other Persons and all
dividends of other Persons, the payment of which is secured by (or for which the
holder of such Indebtedness has an existing right to be secured by) any Lien
upon Property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness (the amount of such obligation being deemed
to be the lesser of the value of such Property or the amount of the obligation
so secured), (f) all guarantees by such Person of Indebtedness referred to in
this definition (including, with respect to any Production Payment, any
warranties or guaranties of production or payment by such Person with respect to
a Production Payment but excluding other contractual obligations of such Person
with respect to such Production Payment), (g) all Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends and (h) all obligations of such Person
under or in respect of currency exchange contracts, oil and natural gas price
hedging arrangements and Interest Rate Protection Obligations. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Redeemable Capital Stock, such Fair
Market Value shall be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock; provided, however, that if such
Redeemable Capital Stock is not at the date of determination permitted or
required to be repurchased, the "maximum fixed repurchase price" shall be the
book value of such Redeemable Capital Stock. Subject to clause (f) of the first
sentence of this definition, neither Dollar-Denominated Production Payments nor
Volumetric Production Payments shall be deemed to be Indebtedness.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
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"Insolvency or Liquidation Proceeding" means, with respect to any
Person, (a) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith, relative to such Person or its creditors, as such, or its assets or
(b) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements or arrangements designed to protect
against or manage such Person's and any of its Subsidiaries' exposure to
fluctuations in interest rates.
"Investment Company Act" means the United States Investment Company Act
of 1940 and any statute successor thereto, in each case as amended from time to
time.
"Issue Date" means, when used with respect to a Security of a
particular series, the date upon which the Securities of such series first were
issued and authenticated under this Indenture.
"Judgment Currency" has the meaning specified in Section 506.
"legal defeasance" has the meaning specified in Section 1302.
"Last Sale Price" has the meaning specified in Section 1503.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or grant a Lien or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing) upon or with respect to any Property of any kind. A Person shall be
deemed to own
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<PAGE> 17
subject to a Lien any Property which such Person has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-payment Event of Default" means any event (other than a Payment
Event of Default), the occurrence of which (with or without notice or the
passage of time) entitles one or more Persons to accelerate the maturity of any
Specified Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which is issued
at a price lower than the principal amount payable upon the Stated Maturity
thereof and which provides for an amount less than the principal amount thereof
to be due and payable upon redemption thereof or upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
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(3) Securities, except to the extent provided in Sections 1302
and 1303 hereof, with respect to which the Company has effected legal
defeasance or covenant defeasance as provided in Article Thirteen
hereof;
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(5) Securities converted into Common Stock or Preferred Stock
pursuant hereto and, for purposes of selection for redemption,
Securities not deemed Outstanding pursuant to Section 1103;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, consent, notice, waiver or other
action hereunder as of any date, and for the purpose of making the calculations
required by the Trust Indenture Act Section 313, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall
be the amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to Section
502, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), (D) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed to
be Outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (E) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not
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<PAGE> 19
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of or any premium or
interest on any Securities on behalf of the Company.
"Payment Blockage Notice" has the meaning specified in Section 1603.
"Payment Blockage Period" has the meaning specified in Section 1603.
"Payment Event of Default" means any default in the payment or required
prepayment of principal of (or premium, if any, on) or interest on any Specified
Senior Indebtedness when due (whether at final maturity, upon scheduled
installment, upon acceleration or otherwise).
"Permitted Junior Securities" means any equity securities or
subordinated debt securities of the Company or any successor obligor with
respect to the Senior Indebtedness provided for by a plan of reorganization or
readjustment that, in the case of any such subordinated debt securities, are
subordinated in right of payment to all Senior Indebtedness that may at the time
be outstanding to substantially the same degree as, or to a greater extent than,
the Securities are so subordinated as provided in this Indenture.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301, subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security, including any Security of a different series, evidencing all or a
portion of the same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and delivered under
Section 306 hereof in exchange for a mutilated security or in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of this Indenture,
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including, without limitation, all classes and series of preferred or preference
stock of such Person.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or by contract or otherwise, is, or upon the happening of an event or passage of
time would be, required to be redeemed prior to the final Stated Maturity of the
Securities or is redeemable at the option of the holder thereof at any time
prior to such final Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to such final Stated Maturity; provided, that
Redeemable Capital Stock shall not include any security by virtue of the fact
that it may be exchanged or converted at the option of the holder, or at the
option of the Company, into Common Stock of the Company.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, 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, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the 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 301.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Department of the Trustee, and also means, with
respect to a particular
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<PAGE> 21
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture, as amended or supplemented from time to time in accordance with the
terms hereof, and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor act thereto.
"Security Custodian" means, with respect to Securities of a series, the
Trustee for Securities of such series, as custodian with respect to the
Securities of such series issued in global form, or any successor entity
thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any, on)
and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law) and other amounts due
on or in connection with (including any fees, premiums, expenses, including
costs of collection, and indemnities) any Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness will be pari passu with or expressly
subordinated in right of payment to the Securities. Notwithstanding the
foregoing, "Senior Indebtedness" will not include (A) Indebtedness evidenced by
the Securities, (B) Indebtedness of the Company that is Pari Passu Indebtedness
or is expressly subordinated in right of payment to any other Indebtedness of
the Company, (C) Indebtedness that is represented by Redeemable Capital Stock,
(D) Indebtedness of the Company to any Subsidiary of the Company or any other
Affiliate of the Company or any subsidiary of such Affiliate and (E)
Indebtedness which when incurred and without regard to any election under
Section 1111(b) of the Federal Bankruptcy Code is without recourse to the
Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed pursuant to Section 307.
"Specified Senior Indebtedness" means (a) all Senior Indebtedness of
the Company in respect of the Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings, or replacements
(each, for purposes of this definition, a "refinancing") thereof by the Company,
including any successive refinancings thereof by the Company and (b) any other
Senior Indebtedness and any refinancings thereof by the
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<PAGE> 22
Company having a principal amount of at least $10,000,000 as of the date of
determination and provided that the agreements, indentures or other instruments
evidencing such Senior Indebtedness or pursuant to which such Senior
Indebtedness was issued specifically designates such Senior Indebtedness as
"Specified Senior Indebtedness" for purposes of this Indenture. For purposes of
this definition, a refinancing of any Specified Senior Indebtedness shall be
treated as a Specified Senior Indebtedness only if the Indebtedness issued in
such refinancing ranks or would rank pari passu with the Specified Senior
Indebtedness refinanced.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
"Surviving Entity" has the meaning specified in Section 801.
"Trading Day" has the meaning specified in Section 1503.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
amended and in force at the date as of which this Indenture was executed;
provided, however, that in the event the United States Trust Indenture Act of
l939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the United States Trust Indenture Act of 1939 as
so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
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"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 102. RULES OF CONSTRUCTION
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) 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
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<PAGE> 24
subdivision, and the words "date of this Indenture" and "date hereof"
and other words of similar import refer to the effective date of the
original execution and delivery of this Indenture, viz. _________ __.
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include
subsequent amendments and waivers but only to the extent not prohibited
by this Indenture; and
(8) unless otherwise indicated, all dollar amounts are
expressed in U.S. dollars.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including temporary or permanent global form) as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with law, or with the
rules of any securities exchange or to conform to general usage, all as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If
temporary Securities of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the forms of Securities or
coupons of any series (or any such temporary global Security) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities (or any such
temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be typed, printed,
lithographed or engraved or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities or coupons.
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<PAGE> 25
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________________________,
as Trustee
By:
---------------------------------
Authorized Signatory
SECTION 203. SECURITIES IN GLOBAL FORM; CERTAIN BOOK-ENTRY PROVISIONS.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced or increased, as appropriate, to
reflect exchanges or redemptions. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee (i) in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304 or (ii) otherwise in accordance with written
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such global Security. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. With respect to
the Securities of any series that are represented by a Book-Entry Security, the
Company authorizes the execution and delivery by the Trustee of a letter of
representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such Security. Any
Security Book-Entry may be deposited with the Depositary or its nominee, or
remain in the custody of the trustee or the Security Custodian therefor pursuant
to a FAST Balance Certificate Agreement or similar agreement between the Trustee
and the Depositary. If a Company Order pursuant to Section 303 or 304 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement
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<PAGE> 26
or delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 1701 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1701 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any nominee thereof
to a successor Depositary or any nominee of such successor Depositary) may be
registered except in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or
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<PAGE> 27
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305;
(4) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable, and the Regular Record Date for any interest payable
on any Registered Securities on any Interest Payment Date and whether,
and under what circumstances, additional amounts with respect to such
Securities shall be payable as set forth in Section 1004;
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<PAGE> 28
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange or conversion and notices
and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(8) the right, if any, of the Company to redeem 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 terms and
conditions upon which Securities of the series may be so redeemed;
(9) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods (or the method of
determination of such period or periods) within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(10) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other than
the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States
of America for purposes of the definition of "Outstanding" in Section
101;
(12) if the amount of payments of principal of and any premium
or interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula or other method, the
manner in which such amounts shall be determined;
(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in
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which the Securities are stated to be payable, the currency or
currencies in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depositary with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be exchanged
for Securities registered in the name of, and any transfer of such
Book-Entry Security may be registered to, a Person other than such
Depositary or its nominee, if other than as set forth in Section 305;
(16) if either or both of the provisions of Section 1302 or
1303 are applicable to the Securities of such series, in whole or any
specified part, and any additional means of discharge pursuant to
Section 1302 or 1303 and any additional conditions to the provisions of
Section 1302 or 1303;
(17) any applicability of, and any additions to, deletion from
or change in Events of Default with respect to the Securities of such
series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 502;
(18) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(19) the applicability of, and any addition to, change in or
limitation on, the covenants set forth in Article Ten and the
definitions set forth in Section 101 that apply to Securities of the
series;
(20) any restriction or condition on the transferability of
the Securities; and
(21) whether the Securities of the series will be convertible
into Common Stock, Preferred Stock or other securities of the Company
(or cash in lieu of any thereof) and, if so, the terms and conditions
upon which such conversion will be
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effected including the initial Conversion Price and any adjustments
thereto in addition to or different from those set forth in Section
1504, the conversion period and other provisions in addition to or in
lieu of those set forth herein;
(22) any subordination provisions with respect to the
Securities of such series in addition to or in lieu of those set forth
in Article Sixteen hereof; and
(23) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and
the duration of such extensions;
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted
by Section 901(8)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
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SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or a Vice President of the Company,
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chief Financial Officer, the Treasurer
or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
(i) in the case of Securities of a series that are not to be originally issued
at one time, the Trustee shall authenticate and deliver or make available for
delivery such Securities from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by or
pursuant to a Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series, and (ii) unless otherwise
provided with respect to such series, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that, unless otherwise provided with
respect to such series, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A
to this Indenture, dated no earlier than the Certification Date. If any Security
shall be represented by a permanent global Bearer Security, then, for purposes
of this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion of
a temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled.
If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating
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such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(1) that the forms of such Securities and coupons established
by or pursuant to a Board Resolution as permitted by Section 201 have
been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; provided, that such Opinion of Counsel need express no
opinion as to whether a court in the United States would render a money
judgment in currency other than that of the United States.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon issuance of the first Security
of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
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Each Registered Security shall be dated the date of its authentication;
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 1701 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities. In
the case of any series issuable as Bearer Securities, such temporary Securities
may be in global form. A temporary Bearer Security shall be delivered only in
compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of
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definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
issued in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B to this Indenture. The definitive Securities to be delivered
in exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that no definitive Bearer Security or
permanent global Security shall be delivered in exchange for a temporary Bearer
Security except in compliance with the conditions set forth in Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate
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shall be available from the offices of Euro-clear and CEDEL S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and each Paying
Agent and after the Exchange Date, the interest of a beneficial owner of
Securities of a series in a temporary global Security shall be exchanged for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent global Security) of the
same series and of like tenor following such beneficial owner's delivery to
Euro-clear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date. Unless otherwise specified in such temporary global Security, any exchange
shall be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series shall be
payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery
by Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in
the form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euro-clear or CEDEL
S.A., as the case may be, a certificate in the form set forth in Exhibit A to
this Indenture. Any interest so received by Euro-clear and CEDEL S.A. and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of each series of Registered Securities and
the registration of transfers of such Registered Securities. The Trustee shall
serve initially as "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
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Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Unless otherwise provided with respect to
any series of Securities, Bearer Securities may not be issued in exchange for
Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer 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 Bearer Securities are accompanied by payment in funds acceptable
to the Company 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
Company 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 the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
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 Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only to
the Holder of such coupon when due in accordance with the provisions of this
Indenture.
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Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Common Depositary (which
instructions shall be in writing but need not comply with Section 1701 or be
accompanied by an Opinion of Counsel) by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or in part, for definitive Securities of the same series without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series
for redemption and ending on the relevant Redemption Date; and provided,
further, that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any location
in the United States. Promptly following any such exchange in part, such
permanent global Security shall be returned by the Trustee to the Common
Depositary or such other depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of such permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom
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interest in respect of such portion of such permanent global Security is payable
in accordance with provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series for
redemption and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption, or if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
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 the foregoing and except as otherwise specified as
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any series
may be registered to, any Person other than the Depositary for such Security or
its nominee or a successor Depositary or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Book-Entry Security and a successor Depositary is not appointed by the
Company within ninety (90) days of such notice, or (ii) an Event of Default has
occurred with respect to such
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series and is continuing and the Security Registrar has received a request from
the applicable Depositary to issue Securities in lieu of all or a portion of the
Book-Entry Security (in which case the Company shall deliver Securities within
thirty (30) days of such request) or (iii) the Company executes and delivers to
the Trustee a Company Order that such Book-Entry Security shall be so
exchangeable and the transfer thereof so registrable. Upon the occurrence in
respect of any Book-Entry Security of any series of any one or more of the
conditions specified in clause (i) or (ii) of the preceding sentence or such
other conditions as may be specified, such Book-Entry Security may be exchanged
for Securities registered in the names of, and the transfer of such Book-Entry
Security may be registered to, such Persons (including Persons other than the
Depositary with respect to such series and its nominees) as such Depositary
shall direct. Notwithstanding any other provision of this Indenture, any
Security authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry
Security and shall bear the legend specified in Section 204 except for any
Security authenticated and delivered in exchange for, or upon registration of
transfer of, a Book-Entry Security pursuant to the preceding sentence.
In connection with any transfer of a portion of the beneficial interest
in a Book-Entry Security to beneficial owners pursuant to this Section, the
Security Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee upon receipt o a
Company Order for the authentication and delivery of the Securities shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
In connection with the transfer of all the beneficial interest in a
Book-Entry Security to beneficial owners pursuant to this Section, the
Book-Entry Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon Company
Order authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Book-Entry Security,
an equal aggregate principal amount of Securities of authorized denominations.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND
COUPONS.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them
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harmless, then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable or is being surrendered
for conversion in full, the Company in its discretion may, instead of issuing a
new Security, pay such Security or coupon or authorize the conversion thereof
(without surrender thereof except in the case of a mutilated Security or
coupon); provided, however, that the principal of and any premium and interest
on Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees, and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement,
payment or conversion of mutilated, destroyed, lost or stolen Securities or
coupons.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise so provided, at the option of
the Company, payment of interest on any Registered Security may be made (i) by
check mailed on or before the due date to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register; provided, that such Person shall have provided to the
Company or the Paying Agent wire transfer instructions at least five Business
Days prior to the applicable Interest Payment Date.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series, the date of the proposed payment and the Special Record
Date, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. The Special Record Date for the payment of such
Defaulted Interest shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of
Registered Securities of such series at the address of such Holder as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor
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Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be then listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or impair, as between a
Depositary and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Security.
Neither the Company nor the Trustee will have any responsibility or
liability for any for any aspect of the records relating to, or payments made on
account of, Securities by the
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Depositary, or for maintaining, supervising or reviewing any records of the
Depositary relating to such Securities. Neither the Company nor the Trustee
shall be liable for any delay by the related Book-Entry Security Holder or the
Depositary in identifying the beneficial owners, and each such Person may
conclusively rely on, and shall be protected in relying on, instructions from
such Book-Entry Security Holder or the Depositary for all purposes (including
with respect to the registration and delivery, and the respective principal
amounts, of the Securities to be issued).
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer, conversion or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee. All Registered Securities and matured coupons so
delivered shall be promptly canceled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be canceled or held for reissuance. Bearer
Securities and unmatured coupons held for reissuance may be reissued only in
replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and like tenor or the related coupons pursuant to Section 306. All
Bearer Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for all purposes of
this Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities and coupons held
by the Trustee shall be disposed of in accordance with its customary practice.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 311. CUSIP NUMBERS.
The Company in issuing any Registered Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Registered Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Registered Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (1) either
(A) all Securities theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced, converted or paid as
provided in Section 306, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities and coupons for
whose payment money or U.S. Government Obligations has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below,
any coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness
on such Securities and coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and any interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
then due and payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, when taken together,
state that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by the provisions of Article Sixteen hereof or operation of law or pursuant to
any judgment, decree or order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to that particular
series of Securities or has been specifically deleted or modified in or pursuant
to the terms of such series or in the form of Security of such series:
(1) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(2) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and continuance of
such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant of
the Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises (A) for relief in respect of the Company
in an involuntary case or proceeding under the Federal Bankruptcy Code
or any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) adjudging the Company
bankrupt or insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company under the Federal
Bankruptcy Code or any applicable federal or state law, or appointing
under any such law a custodian, receiver,
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liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of a substantial part of its consolidated assets, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under the Federal Bankruptcy Code or any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by the Company to the entry of a decree or order for
relief in respect thereof in an involuntary case or proceeding under
the Federal Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by the Company of a petition or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by it under any such law to the filing of any such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or other similar
official) of the Company or of any substantial part of its consolidated
assets, or the making by it of an assignment for the benefit of
creditors under any such law, or the admission by it in writing of its
inability to pay its debts generally as they become due or taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to
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the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding
Securities of that series,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful and is required hereunder, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities (without
duplication of any amount paid or deposited pursuant to clauses (A) and
(B) above), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, 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
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, subject to Article Sixteen, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 606.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
first: Subject to Article Sixteen, to the payment of all
amounts due the Trustee under Section 606;
second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal and any premium and
interest, respectively; and
third: Subject to Article Sixteen, any remaining amounts shall
be repaid to the Company.
In any case in which Securities are Outstanding that are denominated in
more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided with
respect to any series of Securities, the Trustee shall calculate the amount of
such payments as follows: (i) as of the day the Trustee collects an amount under
this Article, the Trustee shall, as to each Holder of a Security to whom an
amount is due and payable under this Section that is denominated in a foreign
currency, determine that amount in Dollars that would be obtained for the amount
owing such Holder, using the rate of exchange at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York Dollars
with such amount owing; (ii) calculate the sum of all Dollar amounts determined
under (i) and add thereto any amounts due and payable in Dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due
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and payable in Dollars, as the case may be, as a numerator, and the sum
calculated in (ii) as a denominator, calculate as to each Holder of a Security
to whom an amount is owed under this Section the fraction of the amount
collected under this Article payable to such Holder. Any expenses incurred by
the Trustee in actually converting amounts owing Holders of Securities
denominated in a currency other than that in which any amount is collected under
this Article shall be likewise (in accordance with this paragraph) borne ratably
by all Holders of Securities to whom amounts are payable under this Section. Any
calculations done by the Trustee shall be presumptively conclusive and binding
absent manifest error.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, 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 Business Day in The City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under this Section caused
by a change in exchange rates between the time the amount of a judgment against
the Company is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture (but subject to
Article Sixteen), the Holder of any Security or coupon shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Sections 305 and 307) any interest on such Security
or payment of such coupon on the respective Stated Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date) and,
if applicable, to convert such Security as provided in Article Fifteen and to
institute suit for the enforcement of any such payment or conversion right, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, 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.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or involve the Trustee in personal liability
or be unjustly prejudicial to the Holders of Securities of such series
not taking part in such direction,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders not
joining therein.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past or existing Default or Event of
Default hereunder with respect to the Securities of such series and its
consequences, except a Default or Event of Default,
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Any such waiver may (but need not) be given in connection with a tender
offer or exchange offer for the Securities of the series affected.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
to take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing with
respect to Securities of any series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with
respect to Securities of any series:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, and shall be fully protected in so
relying, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture;
provided, however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph shall not limit the effect of
Section 601(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512.
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SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any Officers' Certificate,
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely conclusively upon an
Officers' Certificate;
(4) the Trustee may consult with counsel reasonably selected
by it and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may reasonably see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the
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Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(8) 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 or rights or powers conferred upon
it by this Indenture; and
(9) the Trustee shall not be deemed to have notice or
knowledge of any matter unless a Responsible Officer has actual
knowledge thereof or unless written notice thereof is received by the
Trustee at its Corporate Trust Office and such notice references the
Securities generally, the Company or this Indenture.
The Trustee shall not be required to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of any Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311 in the case of the Trustee, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
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SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
from time to time upon receipt by the Trustee of a Company Order except as
otherwise provided in this Indenture.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in
writing by the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's willful misconduct, negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, liability, or expense incurred without
willful misconduct, negligence or bad faith on its part, (i) arising
out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder or (ii) in connection with
enforcing this indemnification provision.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or Section 501(6), such expenses
and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law. The obligations of the Company
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under this Section shall not be subordinated to the payment of Senior
Indebtedness pursuant to Article Sixteen.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this (1) Indenture with
respect to Securities of more than one series, (2) any other indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 610 hereof shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case,
(A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or
(B) subject to TIA Section 315(e), any Holder who has
been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 610. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance
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of such appointment in accordance with the applicable requirements of Section
610, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 610, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series. The evidence of such successorship may, but need not be, evidenced by a
supplemental indenture.
(f) The Company shall give notice of each resignation and each removal
of the Trustee to the Holders of Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for in Section 1505. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee but on the request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of all amounts due it under Section 606, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration
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of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. As soon as practicable, the successor Trustee
shall give notice to the Company of its succession. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities; and in case at that time any of the Securities shall not have been
authenticated, any successor 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 certificates shall have the full force which it is
anywhere in the Securities of like tenor or in this Indenture provided;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 613. NOTICE OF DEFAULTS.
Within 60 days after the occurrence of any Default with respect to any
series of Securities issued hereunder, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any, on) or interest on any series of
Securities, 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 and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of such
series.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee, with the prior written consent of the Company and after
giving notice of the appointment described in this Section 614 in the manner
provided in Section 1705 to all Holders or Registered Securities, if any,
affected by such appointment, may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia (or, if Bearer Securities, organized and doing
business under the laws of the country in which the Bearer Securities are
eligible), authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority (or, if Bearer
Securities, an authority of the country in which the Bearer Securities are
eligible). If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
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examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may, and if it shall cease to be eligible
shall, resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 1505 to all Holders of Registered Securities, if any, of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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"This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
-------------------------------------
As Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be such
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701 HOLDERS' LISTS; HOLDER COMMUNICATIONS; DISCLOSURES
RESPECTING HOLDERS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders of each series of the Securities. Neither the Company nor the
Trustee shall be under any responsibility with regard to the accuracy of such
lists. If the Trustee is not the Security Registrar, the Company shall furnish
to the Trustee semi-annually before each Regular Record Date, and at such other
times as the Trustee may reasonably request in writing, a list, in such form as
the Trustee may reasonably request, as of such date of the names and addresses
of the Holders of each series of the Securities then known to the Company. The
Company and the Trustee shall also satisfy any other requirements imposed upon
each of them by TIA Section 312(a).
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Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the
Securities.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Security Registrar and the Trustee that none
of the Company, the Security Registrar or the Trustee, or any agent of any of
them, shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, that each of
such Persons shall have the protection of TIA Section 312(c) and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702 REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with May 15, 2000,
the Trustee shall transmit by mail to the Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 in
accordance with and to the extent required under TIA Section 313(a). The Trustee
shall also comply with TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
Commencing at the time this Indenture is qualified under the Trust
Indenture Act, a copy of each Trustee's report, at the time of its mailing to
Holders of Securities, shall be mailed to the Company and filed with the
Commission and each stock exchange, if any, on which the Securities are listed.
SECTION 703 REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and
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covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports (without exhibits except to the extent required by TIA
Section 313(c)) required to be filed by the Company pursuant to paragraph (a) or
(b) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in any single transaction or a series of related
transactions, merge or consolidate with or into any other Person (other than a
merger of a Subsidiary into the Company), or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all the Properties of the
Company to any Person or group of Affiliated Persons, unless at the time and
after giving affect thereto:
(a) either (i) if the transaction is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the Properties of the Company are sold,
assigned, conveyed, transferred, leased or otherwise disposed of (any such
surviving Person or transferee Person being called the "Surviving Entity") shall
be a Person organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall, in either
case, expressly assume by a supplemental indenture to this Indenture executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture, and, in each
case, this Indenture shall remain in full force and effect;
(b) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Company which becomes the obligation of the Company in
connection with or as a result of such transaction or transactions as having
been incurred at the time of such transaction or transactions), no Default or
Event of Default shall have occurred and be continuing; and
(c) the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) shall have delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, (i) an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer, lease
or other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture,
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comply with this Indenture and (ii) an Opinion of Counsel stating that the
requirements of Section 801(a) have been satisfied.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with or merger of the Company
into any other Person or any sale, assignment, lease, conveyance, transfer or
other disposition of all or substantially all of the Properties of the Company
in accordance with Section 801 hereof, the Surviving Entity shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such Surviving Entity had been
named as the Company herein, and in the event of any such sale, assignment,
lease, conveyance, transfer or other disposition, the Company (which term shall
for this purpose mean the Person named as the "Company" in the first paragraph
of this Indenture or any successor Person which shall theretofore become such in
the manner described in Section 801 hereof), except in the case of a lease,
shall be discharged from all obligations and covenants under this Indenture and
the Securities and coupons, and the Company may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee upon Company
Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto or otherwise amend this Indenture, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), to provide any additional rights or benefits
to such Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for
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the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for
the benefit of such series); or
(4) 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 610; or
(5) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided, however,
that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(6) to secure the Securities pursuant to the requirements of
this Indenture or otherwise; or
(7) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(8) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
(9) to provide for uncertificated Securities of any series in
addition to or in place of certificated Securities of such series; or
(10) to comply with the requirements of the Commission in
order to affect or maintain the qualification of this Indenture under
the Trust Indenture Act; or
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(11) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301; or
(12) to provide for adjustment of conversion rights pursuant
to Section 1505 hereof; or
(13) to make any change that does not adversely affect the
interests of any Holder.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 903 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture (which consent may, but need not, be given in
connection with any tender offer or exchange offer for the Securities of each
series affected), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
upon Company request may enter into an indenture or indentures supplemental
hereto, amendments to this Indenture or waivers for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture, amendment or waiver
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or adversely affect any
right of repayment at the option of a Holder of any Security, or reduce
the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or adversely affect the right to convert
Securities, if applicable, or impair the right to institute suit for
the enforcement of
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(x) any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date) or (y) any
conversion right with respect to any Security, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 1002,
or
(4) modify any of the provisions of this Section, Section 513
or Section 1007 except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1007 or the deletion of
this proviso, in accordance with the requirements of Sections 610 and
901(4).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, waiver or supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive
and (subject to Section 601) shall be fully protected in relying upon an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture or amendment executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series and of like tenor.
SECTION 907. SUBORDINATION UNIMPAIRED.
This Indenture may not be amended to alter the subordination of any
Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment or, if applicable, for conversion, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or, if applicable, for conversion, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 1004) or, if applicable, for conversion; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange, and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee and prompt notices to the Holders as provided in
Section 1705 of the location, and any change in the location, of any such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1004) or, if applicable,
for conversion, at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.
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No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in The City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to so maintain an office or
agency in accordance with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any other
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before 11:00 a.m., Eastern
time, on each due date of the principal of (or premium, if any, on) or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) and interest so becoming due until such sum shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before 11:00 a.m., Eastern time, on each
due date of the principal of (or premium, if any, on) or interest on any
Securities of that series, deposit with a Paying Agent immediately available
funds in a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
(other than the Trustee or itself) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will: (1) hold all sums
held by it for the payment of the principal of (and premium, if
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any, on) or interest on Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided; (2) give the Trustee notice of any
default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
The Trustee and each Paying Agent shall promptly pay to the Company
upon Company Request any money held by them at any time in excess of amounts
required to pay principal of, premium, if any, or interest on the Securities of
any series.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any, on) or interest
on any Security of any series and remaining unclaimed for one year after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or
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in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made. If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and will
not permit any of its Subsidiaries to, purchase any Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Securities of that
series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
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SECTION 1006. STATEMENT BY OFFICER AS TO DEFAULT.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series or as otherwise required by law, the Company may, with
respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(19), 901(2) or 901(11) for the benefit of the Holders of
such series, if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of such
series shall, by Act of such Holders and on behalf of the Holders of all
Securities of such series, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution, Officers' Certificate or in another manner specified as
contemplated by Section 301 for such Securities. In the case of any redemption
at the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of
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such Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security) the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Company or the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Company or the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Registered Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series or of the principal amount of global Securities of such series. If
less than all of the Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Company or the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify
the other in writing of the Securities selected for redemption as aforesaid and,
in the case of any Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed. If any Security selected for partial
redemption is surrendered for conversion after such selection, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Upon any redemption of less than all the Securities of
a series, for purposes of selection for redemption the Company and the Trustee
may treat as Outstanding Securities surrendered for conversion during the period
of 15 days next preceding the mailing of a notice of redemption, and need not
treat as Outstanding any Security authenticated and delivered during such period
in exchange for the unconverted portion of any Security converted in part during
such period.
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SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
1505 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) if applicable, the Conversion Price then in effect and the
date on which the right to convert the Securities or portions thereof
to be redeemed will expire.
A notice of redemption published as contemplated by Section 1705 need
not identify particular Registered Securities to be redeemed.
If any of the Securities to be redeemed is in the form of a Book-Entry
Security, then the Company shall modify the notice of redemption to the extent
necessary to accord with the procedures of the Depositary applicable to
redemptions.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the
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expense of the Company. Failure to give such notice by mailing to any Holder of
Securities or any defect therein shall not affect the validity of any
proceedings for the redemption of other Securities.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m., Eastern time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) immediately available funds in an amount sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date. Upon Company Order, the Paying Agent shall promptly
return to the Company any money so deposited which is not required for such
purpose.
If any Security called for redemption is converted pursuant hereto, any
money deposited with the Trustee or any Paying Agent or so segregated and held
in trust for the redemption of such Security shall be paid to the Company upon
delivery of a Company Request to the Trustee or such Paying Agent, or, if then
held by the Company, shall be discharged from such trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
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 the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. PURCHASE OF SECURITIES.
The Company shall have the right at any time and from time to time to
purchase securities in the open market or otherwise at any price.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
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The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been (x) converted
into Common Stock or (y) redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities,
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to the Outstanding
Securities of any series upon compliance with the conditions set forth below in
this Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities (other than any
convertible Securities) of any series on the date the conditions set forth in
Section 1304 are satisfied (hereinafter, "legal defeasance"). For this purpose,
such legal defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under the Securities
of such series and this Indenture insofar as the Securities of such series are
concerned (and the Trustee, at the expense and direction of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of the Outstanding Securities of such series to receive,
solely from the trust fund described in Section 1304 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any,
on and interest on the Securities of such series when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002, 1003 and 1004, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may exercise its option under
this Section 1302 notwithstanding the prior exercise of its option under Section
1303.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801 and
1005 and any covenant added to this Indenture pursuant to Sections 301(19),
901(2) and 901(11), and (ii) the occurrence of any event specified in Section
501(4) (with respect to Sections 801 and 1005 and any such covenants added to
this Indenture pursuant to Sections 301 (19), 901(2) and 901 (11)) and 501(7)
shall be deemed to not be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
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condition or limitation set forth in any such Article or Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly, by
reason of any reference elsewhere herein to any such Article or Section or by
reason of any reference in any such Article or Section to any other provision
herein or in any other document, but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) 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, (A) cash in U.S. dollars in
an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) 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 and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any, on) and interest on
the Outstanding Securities and any coupons pertaining thereto on the
Stated Maturity thereof in accordance with the terms of this Indenture
and of the Securities of such series. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific
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payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Event of Default or Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit.
(3) Such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest under this Indenture
and the Trust Indenture Act with respect to any securities of the
Company.
(4) Such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable federal income tax
laws, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such legal 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 legal defeasance had not
occurred.
(6) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss 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.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, which, taken together,
state that all conditions precedent provided for relating to either the
legal defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the
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Investment Company Act unless such trust shall be qualified under such
Act or exempt from regulation thereunder.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities of such series and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company 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 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance, as applicable, in accordance with this Article.
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SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 1302 or 1303, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (or premium, if any, on) or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Securities of such series to receive such
payment from the money held by the Trustee or the Paying Agent.
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ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1705, not less than 21 nor more than
120 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting duly
reconvened at which a quorum is present as aforesaid) may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting (or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid) by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
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matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1503 and the
appointment of any proxy shall be proved in the manner specified in Section 1503
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1503 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1503 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot
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taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1402 and, if applicable, Section 1404.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible into Common Stock of the Company or, if so
provided in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Sections 201 and 301 by or pursuant to which the form
and terms of the Securities of such series were established, into Preferred
Stock, other Securities of the Company or cash in lieu of any of the foregoing,
as and to the extent provided by the terms of the Securities of such series.
SECTION 1502. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Conversion Agent
at any time during usual business hours at its office or agency maintained for
the purpose as provided in this Indenture, accompanied by a fully executed
written notice, in substantially the form set forth on the reverse of the
Security, that the Holder elects to convert such Security or a stated portion
thereof constituting a multiple of $1,000 in principal amount, and, if such
Security is surrendered for conversion during the period between the close of
business on any record date for such Security and the opening of business on the
related Interest Payment Date and has not been called for redemption on a
Redemption Date within such period (or on such Interest Payment Date),
accompanied also by payment of an amount equal to the interest payable on such
Interest Payment Date on the portion of the principal amount of the Security
being surrendered for conversion. Such notice shall also state the name or names
(and address) in which the certificate or certificates for shares of Common
Stock shall be issued (or to whom payment in cash in lieu of Common Stock shall
be made). Securities surrendered for conversion shall (if so required by the
Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of such
notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 1507, issue and deliver at such office or
agency to such Holder, or on his written
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order, a certificate or certificates for the number of full shares of Common
Stock issuable on conversion of such Security in accordance with the provisions
of such Security and cash, as provided in Section 1503, in respect of any
fraction of a share of Common Stock otherwise issuable upon such conversion or,
if so provided in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 201 and 301 by or pursuant to
which the form and terms of the Securities of such series were established, cash
in lieu of shares of Common Stock. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected, immediately prior to
the close of business on the date (herein called the "Date of Conversion") on
which such notice in proper form shall have been received by the Conversion
Agent and such Security shall have been surrendered as aforesaid, and the Person
or Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable, if any, upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued, if any, as the record holder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
Security or Securities in the aggregate principal amount of the unconverted
portion of the Security surrendered. Except as otherwise expressly provided in
this Indenture, no payment or adjustment shall be made for interest accrued on
any Security (or portion thereof) converted or for dividends or distributions on
any Common Stock issued upon conversion of any Security. The right, if any, of a
Holder of any Security to cause the Company to redeem, purchase or repay such
Security shall terminate upon receipt by the Company of any notice of conversion
of such Security.
SECTION 1503. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 1503, be issuable on the conversion of any Security or Securities, the
Company shall make payment in lieu thereof in cash equal to the value of such
fraction computed on the basis of the Last Sale Price of one share of Common
Stock on the most recent Trading Day prior to the Date of Conversion. "Last Sale
Price" on any Trading Day shall mean (i) the closing price regular way (or, if
no closing price is reported the average of the bid and asked prices) as
reported on the New York Stock Exchange Composite Tape, or (ii) if on such
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Trading Day the Common Stock is not listed or admitted to trading on such
exchange, the closing price regular way (or, if no closing price is reported the
average of the bid and asked prices) on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or (iii) if
not listed or admitted to trading on any national securities exchange on such
Trading Day, then the average of the closing bid and asked prices as reported
through the National Association of Securities Dealers, Inc. on its NASDAQ
National Market or other NASDAQ market or through a similar organization if
NASDAQ is no longer reporting information, or (iv) if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market or other NASDAQ market on such Trading Day, then the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose or (v) if not quoted by any such organization on
such Trading Day, the fair value of such Common Stock on such Trading Day, as
determined by the Board of Directors. The term "Trading Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above mentioned exchanges or in such
markets.
SECTION 1504. ADJUSTMENT OF CONVERSION PRICE.
The conversion price or rate (herein called the "Conversion Price") for
a series of Securities shall be as set forth in a Board Resolution, Officers'
Certificate or executed supplemental indenture referred to in Sections 201 and
301 by or pursuant to which the form and terms of the Securities of such series
were established, and, except as otherwise provided therein, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a distribution
in shares of Common Stock on the Common Stock, (2) subdivide its outstanding
shares of Common Stock into a greater number of shares, (3) combine its
outstanding shares of Common Stock into a smaller number of shares or (4) issue
by reclassification of its Common Stock any shares of capital stock of the
Company, the Conversion Price in effect immediately prior to such action shall
be adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock or
other capital stock of the Company which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Security thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital stock
(including shares of Common Stock and other capital stock) of the Company, the
Board of Directors (whose determination shall be conclusive and shall be
described in a statement filed with the Trustee) shall determine the
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allocation of the adjusted Conversion Price between or among shares of such
classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common Stock at a price
per share less than the current market price per share (as determined pursuant
to subsection (d) below) of the Common Stock on the record date mentioned below,
the Conversion Price shall be adjusted to a price, computed to the nearest cent,
so that the same shall equal the price determined by multiplying;
(1) the Conversion Price in effect immediately prior
to the date of issuance of such rights or warrants by a fraction, of
which
(2) the numerator shall be (A) the number of shares
of Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (B) the number of
shares which the aggregate offering price of the total number of shares
so offered for subscription or purchase would purchase at such current
market price (determined by multiplying such total number of shares by
the exercise price of such rights or warrants and dividing the product
so obtained by such current market price), and of which
(3) the denominator shall be (A) the number of shares
of Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (B) the number of
additional shares of Common Stock which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock evidences of indebtedness, equity securities (including equity
interests in the Company's Subsidiaries) other than Common Stock or other assets
(other than cash dividends paid out of surplus of the Company), or shall
distribute to substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those referred to in subsection (b) above)
then in each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such fair
market value) of the portion of the assets so distributed or
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of such subscription rights or warrants applicable to one share of Common Stock
and of which the denominator shall be such current market price per share of the
Common Stock. Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purposes of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices for the 30 consecutive Trading
Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 1504 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 1503 or issuing to the Holder of such
Security the number of shares of Common Stock and other capital stock of the
Company issuable upon such conversion in excess of the number of shares of
Common Stock and other capital stock of the Company issuable thereupon only on
the basis of the Conversion Price prior to adjustment and (ii), not later than
five Business Days after such adjustment shall have become effective, pay to
such Holder the appropriate cash payment pursuant to Section 1503 and issue to
such Holder the additional shares of Common Stock and other capital stock of the
Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, provided, further, that
adjustment shall be required and made in accordance with the provisions of this
Article Fifteen (other than this subsection (f)) not later than such time as may
be required in order to preserve the tax-free nature of a distribution to the
holders of Securities or Common Stock. All calculations under this Article
Fifteen shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) give or cause to be given a notice of such adjustment to
each Holder of Securities in the manner provided in Section 1705.
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Anything in this Section 1504 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 1504, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
SECTION 1505. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock or (b) any conveyance, transfer
or lease of the properties and assets of the Company substantially as an
entirety to any Person, then the Company, or such successor or purchasing
Person, as the case may be, shall, as a condition precedent to such
consolidation, merger, conveyance, transfer or lease, execute and deliver to the
Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act) providing that the Holder of each convertible Security then Outstanding
shall have the right to convert such Security into the kind and amount of shares
of stock and other securities and property (including cash) receivable upon or
in connection with such consolidation, merger, conveyance, transfer or lease by
a holder of the number of shares of Common Stock issuable upon conversion of
such Security immediately prior to such consolidation, merger, conveyance,
transfer or lease. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Fifteen. If, in the case of any such consolidation,
merger, conveyance, transfer or lease, the stock or other securities and
property (including cash) receivable thereupon or in connection therewith by a
holder of shares of Common Stock includes shares of stock or other securities
and property (including cash) of a Person other than the successor or purchasing
Person, as the case may be, in such consolidation, merger, conveyance, transfer
or lease, then such supplemental indenture shall also be executed by such other
Person and shall contain such additional provisions to protect the interests of
the Holders of the Securities as the Board of Directors shall reasonably
consider necessary by reason of the foregoing. The provisions of this Section
1505 shall similarly apply to successive consolidations, mergers, conveyances,
transfer or leases.
Notice of the execution of each such supplemental indenture shall be
given to each Holder of Securities in the manner provided in Section 1705.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities
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after any such consolidation, merger, conveyance, transfer or lease or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Sections 601 and 603, may accept as conclusive evidence of the correctness of
any such provision, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee prior
the execution of any such supplemental indenture) with respect thereto.
SECTION 1506. NOTICE OF CERTAIN EVENTS.
If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
(b) the Company shall authorize the granting to all holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Securities as provided in
Section 1002, and shall cause to be given to each Holder of Securities, in the
manner provided in Section 1705, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event that
more than one date is specified), a notice stating the date on which (1) a
record is expected to be taken for the purpose of such dividend, distribution or
rights, or if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution or rights
are to be determined, or (2) such reclassification, change, consolidation,
merger, conveyance, transfer or lease, 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, conveyance, transfer or
lease, dissolution, liquidation or winding-up.
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SECTION 1507. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
SECTION 1508. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented for
conversion, provided, however, that nothing contained herein shall be construed
to preclude the Company from satisfying its obligations in respect of the
conversion of Securities by delivery of repurchased shares of Common Stock which
are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 1508 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article
Fifteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock the
Company will take all corporate action which may, in the opinion of counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
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SECTION 1509. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, any Conversion Agent nor any agent of either shall
at any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 1504(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee, any Conversion Agent nor any agent of either shall be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock or of any securities or property (including cash), which may at any time
be issued or delivered upon the conversion of any Security, and neither the
Trustee, any Conversion Agent nor any agent of either makes any representation
with respect thereto. Neither the Trustee, any Conversion Agent nor any agent of
either shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Common Stock or stock certificates or
other securities or property (including cash) upon the surrender of any Security
for the purpose of conversion or, subject to Sections 601 and 603, to comply
with any of the covenants of the Company contained in this Article Sixteen.
SECTION 1510. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of and interest, if any, on any of the Securities and which shall not
be required for such purposes because of the conversion of such Securities, as
provided in this Indenture, shall forthwith after such conversion be repaid to
the Company by the Trustee or such Paying Agent.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any, on)
and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full of all Senior Indebtedness, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed or guaranteed;
provided, however, that the Securities, the Indebtedness represented thereby and
the payment of the principal of (and premium, if any, on) and interest on the
Securities in all respects shall rank equally with, or prior to, all
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existing and future unsecured indebtedness (including, without limitation,
Indebtedness) of the Company that is subordinated to Senior Indebtedness.
This Article Sixteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 1602. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of Properties of the Company or payment on behalf
of the Company with respect to the Securities in the event of any Insolvency or
Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to
receive payment in full of such Senior Indebtedness, or provision must be made
for such payment, before the Holders of the Securities are entitled to receive
any direct or indirect payment or distribution of any kind or character, whether
in cash, property or securities (other than Permitted Junior Securities) on
account of principal of (or premium, if any, on) or interest on the Securities
or on account of the purchase or redemption or other acquisition of Securities;
and
(b) any direct or indirect payment or distribution of
Properties of the Company of any kind or character, whether in cash, property or
securities (other than a payment or distribution in the form of Permitted Junior
Securities), by set-off or otherwise, to which the Holders or the Trustee, on
behalf of the Holders, would be entitled but for the provisions of this Article
shall be paid by the Company or by any liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of Properties of the Company of any kind or
character, whether in cash, property or securities, by set-off or otherwise, in
respect of principal of (and premium, if any, on) or interest on the Securities
before all Senior Indebtedness is paid or provided for in full, then and in such
event such payment or distribution (other than a payment or distribution in the
form of Permitted Junior Securities) shall be received and held in trust for and
shall be paid
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over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company, 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.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all its Properties on a consolidated basis to another Person or
group of Affiliated Persons pursuant to, and in compliance with, the terms and
conditions set forth in Article Eight hereof shall not be deemed an Insolvency
or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in
full as a prerequisite to any payments being made to the Holders) for the
purposes of this Section.
SECTION 1603. SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT.
(a) Upon (1) the occurrence of a Payment Event of Default and
(2) receipt by the Trustee of written notice of such occurrence, then no payment
or distribution of any Properties of the Company of any kind or character (other
than Permitted Junior Securities) shall be made by the Company on account of
principal of (or premium, if any, on) or interest on the Securities or on
account of the purchase or redemption or other acquisition of Securities unless
and until such Payment Event of Default shall have been cured or waived in
writing or shall have ceased to exist or such Specified Senior Indebtedness
shall have been paid in full or otherwise discharged, after which (unless
otherwise prohibited by Section 1602 hereof) the Company shall resume making any
and all required payments in respect of the Securities, including any missed
payments.
(b) Upon (1) the occurrence of a Non-payment Event of Default
and (2) receipt by the Trustee and the Company of written notice of such
occurrence from one or more of the holders of Specified Senior Indebtedness (or
their representative), then no payment or distribution of any Properties of the
Company of any kind or character (other than Permitted Junior Securities) shall
be made by the Company on account of any principal of (or premium, if any, on)
or interest on the Securities or on account of the purchase or redemption or
other acquisition of Securities for the period specified below (the "Payment
Blockage Period"). The Payment Blockage Period will commence upon the earlier of
the dates of receipt by the Trustee or the Company of such notice (the "Payment
Blockage Notice") from one or more of the holders of Specified Senior
Indebtedness (or their representative) and shall end on the earliest of (i) 179
days thereafter, (ii) the date, as set forth in a written notice from the
holders of the Specified Senior Indebtedness (or their representative) to the
Company or the Trustee, on which such Non-payment Event of Default is cured,
waived in writing or ceases to exist or such Specified Senior Indebtedness is
discharged or (iii) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Company
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or the Trustee from one or more of the holders (or their representative)
initiating such Payment Blockage Period, after which the Company will resume
(unless otherwise prohibited pursuant to the immediately preceding paragraph or
Section 1602 hereof) making any and all required payments in respect of the
Securities, including any missed payments. In any event, not more than one
Payment Blockage Period may be commenced during any period of 360 consecutive
days. No Non-payment Event of Default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee will be, or can be,
made the basis for the commencement of a subsequent Payment Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section 1603, then and in such
event such payment shall be paid over and delivered forthwith to the Company. In
the event that the Company shall make any payment in respect of the Securities
to the Trustee and the Trustee shall receive written notice of a Payment Event
of Default or a Non-payment Event of Default from one or more of the holders of
Specified Senior Indebtedness (or their representative) prior to making any
payment to Holders in respect of the Securities and prior to 11:00 a.m. Eastern
time on the date which is two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose, such payments shall
be paid over by the Trustee and delivered forthwith to the Company.
SECTION 1604. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any Insolvency or Liquidation Proceeding referred to in Section 1602
hereof or under the conditions described in Section 1603 hereof, from making
payments at any time of principal of (and premium, if any, on) or interest on
the Securities.
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SECTION 1605. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
After the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to Senior
Indebtedness to substantially the same extent as the Securities are so
subordinated and which is entitled to like rights of subrogation as a result of
the payments made to the holders of Senior Indebtedness) to the rights of the
holders of Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For purposes of such subrogation,
no payments or distributions to the holders of Senior Indebtedness by or on
behalf of the Company or by or on behalf of the Holders by virtue of this
Article which otherwise would have been made to the Holders shall, as between
the Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1606. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are, and are intended solely, for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of 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 (a) impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any,
on) and interest on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security 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.
SECTION 1607. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs 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 as his attorney-in-fact for any and all such purposes,
including, in the event of any Insolvency or Liquidation Proceeding with respect
to the Company, the immediate filing of a claim for the unpaid balance of his
Securities pursuant to this Indenture in the form required in said proceedings
and the causing of said claim to be approved.
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SECTION 1608. NO WAIVER OF SUBORDINATION PROVISION.
(a) 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 Company or by any act or failure to act by any such holder, or by any
non-compliance by the Company with the terms of this Indenture, regardless of
any knowledge thereof which any such holder may have or be otherwise charged
with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of any Senior Indebtedness, in accordance with
the terms of the instrument or agreement evidencing their Senior Indebtedness,
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to
the Holders of the Securities and without impairing or releasing the
subordination or other benefits provided in this Article, or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew, exchange, amend,
increase or alter, Senior Indebtedness or the terms of any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding or any
liability of any obligor thereon (unless such change, extension, amendment,
increase or other alteration results in such Indebtedness no longer being Senior
Indebtedness as defined in this Indenture); (2) sell, exchange, release or
otherwise deal with any Property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) settle or compromise any Senior Indebtedness or any liability
of any obligor thereon or release any Person liable in any manner for the
collection of Senior Indebtedness; and (4) exercise or refrain from exercising
any rights against the Company and any other Person.
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SECTION 1609. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or one or more of the holders of Senior Indebtedness
(or their representative), with respect to a Payment Default, or one or more of
the holders of Specified Senior Indebtedness (or their representative), with
respect to a Non-payment Event of Default, or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section prior to
11:00 a.m. Eastern time on the date which is two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any, on) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it on or after 11:00 a.m. Eastern time two Business Days prior to
such payment date.
(b) Subject to TIA Sections 315(a) through 315(d), 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,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). 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, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
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SECTION 1610. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT BANK.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Insolvency or
Liquidation Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1611. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity 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, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606 hereof.
SECTION 1612. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time a Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1611 hereof shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1613. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Five hereof or to pursue any rights or
remedies hereunder or under applicable law, except as provided in Article Five
hereof.
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SECTION 1614. TRUST MONEY NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Thirteen hereof by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of Article Thirteen hereof and not
in violation of Section 1602 or 1603 hereof for the payment of principal of (and
premium, if any, on) and interest on the Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Sixteen, and none of the Holders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness or any
other creditor of the Company.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
SECTION 1701. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1006) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
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
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 1701
and the statements required by this Section 1701 shall comply in all respects
with TIA Sections 314(c) and (e).
SECTION 1702. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1703. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or deemed signed pursuant to the policies
and procedures of the Depositary holding the affected Securities, or otherwise.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fourteen, or a combination
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of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are received by the Trustee and, where it is hereby expressly
required, by the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing or deemed to be signing such
instrument or instruments and so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent or proxy or of
the holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Registered Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be
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satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any other
manner which the Trustee deems sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(g) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1704. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered in person, by facsimile
transmission (Secretary (601) 446-1410) or mailed, by registered mail,
return receipt requested, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument to the attention of the Chief
Financial Officer, with a copy to be sent to Callon Petroleum Company,
200 North Canal Street, Natchez, Mississippi 39120,
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Facsimile No. (601) 446-1410, Attention: Controller, or at any
other address or facsimile number previously furnished in writing to
the Trustee by the Company.
SECTION 1705. NOTICE TO HOLDERS; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice;
and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date (if any), and not
later than the latest date (if any), prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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
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with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1706. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1707. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is subject to and shall be governed by the provisions of
the Trust Indenture Act that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act which is required under the Trust Indenture Act to be a part of
and govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1708. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1709. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 1710. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 1711. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the holders of Senior Indebtedness, and the Holders of
Securities and coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1712. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1713. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date for conversion of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities or coupons (other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date and
such conversion need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity or on the last date for conversion the case may
be, provided that no interest shall accrue on the amount so payable for the
period from and after such date.
SECTION 1714. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, incorporator or Affiliate,
as such, past, present or future, of the Company shall not have any personal
liability under the Securities or this Indenture by reason of his or its status
as a director, officer, employee, stockholder, incorporator or Affiliate or any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder, by accepting any of the Securities,
waives and releases all such liability to the extent permitted by applicable
law.
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SECTION 1715. EXECUTION IN COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 1716. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
CALLON PETROLEUM COMPANY
By:
-------------------------------------------
Name:
----------------------------------
Title:
--------------------------------
_______________________________________________
AS TRUSTEE
By:
-------------------------------------------
Name:
----------------------------------
Title:
--------------------------------
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EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNER OF INTEREST
IN A TEMPORARY GLOBAL SECURITY
CALLON PETROLEUM COMPANY
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that are
(A) foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States person(s)
who acquired Securities through the foreign branches of the United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)), or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is being
delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further
A - 1
<PAGE> 117
to certify that, except as set forth below, the Securities are being exercised
by and on behalf of non-U.S. person(s). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Act. As used
herein, "United States" or "U.S." means the United States of America (including
the States and District of Columbia); and its "possessions" include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $_________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: _______________, ____.
NAME OF PERSON MAKING CERTIFICATION
By:
-------------------------------
- ------------- * To be dated no earlier than the Certification Date.
A - 2
<PAGE> 118
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE EURO-CLEAR OPERATOR OR
CEDEL S.A.
CALLON PETROLEUM COMPANY
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of _____________, ____,
between Callon Petroleum Company and ____________________________________, as
Trustee, as of the date hereof, [ ] principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that are (A) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.16512(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(B) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (A)
or (B), each such United States financial institution has agreed, on its own
behalf or through its agent, that it will comply with the requirements of
Section 165(1)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.1635(c)(2)(i)(D)(7)),
and to the further effect that the United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then
this is also to certify with respect to such principal amount of Securities set
forth above that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organizations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect set forth in the Indenture.
B - 1
<PAGE> 119
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, ______.
(dated the Exchange Date or the Interest Payment Date)
-----------------------------------------
By:
-------------------------------------
B-2
<PAGE> 1
EXHIBIT 5.1
September 28, 1999
Callon Petroleum Company
200 North Canal St.
Natchez, MS 39120
Ladies and Gentlemen:
We have acted as counsel to Callon Petroleum Company, a Delaware corporation
(the "Company"), in connection with the preparation for filing with the
Securities and Exchange Commission of a Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). The Registration Statement relates to (i) debt securities of the
Company ("Debt Securities"), (ii) shares of preferred stock, par value $0.01
per share, of the Company ("Preferred Stock"), (iii) shares of common stock,
par value $0.01 per share, of the Company ("Common Stock"), (iv) warrants to
purchase other securities ("Warrants"), and (v) securities purchase contracts
to purchase Common Stock or Preferred Stock ("Securities Purchase Contracts"
and, together with the Debt Securities, the Preferred Stock, the Common Stock
and the Warrants, the "Securities") that may be issued and sold by the Company
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $125,000,000. In connection with the Registration
Statement certain legal matters in connection with the Securities are being
passed upon for you by us.
In our capacity as your counsel in the connection referred to above, we have
examined (i) the Certificate of Incorporation and Bylaws of the Company, each
as amended to date (together, the "Charter Documents"), (ii) the form of
indenture filed as Exhibit 4.11 to the Registration Statement to be executed by
the Company and the trustee thereunder (the "Senior Debt Indenture") pursuant
to which senior Debt Securities may be issued, (iii) the form of indenture
filed as Exhibit 4.12 to the Registration Statement to be executed by the
Company and the trustee thereunder (the "Subordinated Debt Indenture" and,
together with the Senior Debt indenture, the "Indentures") pursuant to which
subordinated Debt Securities may be issued, and (iv) the originals, or copies
certified or otherwise identified, of corporate records of the Company,
certificates of public officials and of representatives of the Company,
statutes and other instruments and documents as a basis for the opinions
hereafter expressed.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been
prepared and filed with the Commission describing the Securities offered
thereby; (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement; (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto; (v) any securities
issuable upon conversion,
<PAGE> 2
Callon Petroleum Company
September 28, 1999
Page 2
exchange, redemption or exercise of any Securities being offered will be duly
authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange, redemption or exercise and (vi) with respect to shares of
Common Stock or Preferred Stock offered, there will be sufficient shares of
Common Stock or Preferred Stock authorized under the Company's Charter
Documents and not otherwise reserved for issuance.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to shares of Common Stock, when (i) the Board of Directors of
the Company or, to the extent permitted by the General Corporation Law of
the State of Delaware and the Company's Charter Documents, a duly
constituted and acting committee thereof (such Board of Directors or
committee being hereinafter referred to as the "Board") has taken all
necessary corporate action to approve the issuance thereof and the terms
of the offering of shares of Common Stock and related matters, and (ii)
certificates representing the shares of Common Stock have been duly
executed, countersigned, registered and delivered either (a) in accordance
with the applicable definitive purchase, underwriting or similar agreement
approved by the Board upon payment of the consideration therefor (not less
than the par value of the Common Stock) provided for therein, or (b) upon
conversion, exchange, redemption or exercise of any other Security, in
accordance with the terms of such Security or the instrument governing
such Security providing for such conversion, exchange, redemption or
exercise as approved by the Board, for the consideration approved by the
Board (not less than the par value of the Common Stock), the shares of
Common Stock will be duly authorized, validly issued, fully paid and
non-assessable.
2. With respect to shares of Preferred Stock, when (i) the Board has taken
all necessary corporate action to approve and establish the terms of the
shares of Preferred Stock, to approve the issuance thereof and the terms
of the offering thereof and related matters, including the adoption of a
Certificate of Designations relating to such Preferred Stock (a
"Certificate of Designations"), and such Certificate of Designations has
been filed with the Secretary of State of the State of Delaware, and (ii)
certificates representing the shares of Preferred Stock have been duly
executed, countersigned, registered and delivered either (a) in accordance
with the applicable definitive purchase, underwriting or similar agreement
approved by the Board upon payment of the consideration therefor (not less
than the par value of the Preferred Stock) provided for therein, or (b)
upon conversion, exchange, redemption or exercise of any other Security,
in accordance with the terms of such Security or the instrument governing
such Security providing for such conversion, exchange, redemption or
exercise as approved by the Board, for the consideration approved by the
Board (not less than the par value of the Preferred Stock), the shares of
Preferred Stock will be duly authorized, validly issued, fully paid and
non-assessable.
3. With respect to Debt Securities to be issued under the Senior Debt
Indenture, when (i) the Senior Debt Indenture has been duly authorized and
validly executed and delivered by the Company to the trustee, (ii) the
Senior Debt Indenture has been duly qualified
<PAGE> 3
Callon Petroleum Company
September 28, 1999
Page 3
under the Trust Indenture Act of 1939, as amended, (iii) the Board has
taken all necessary corporate action to approve and establish the terms of
such Debt Securities, to approve the issuance thereof and the terms of the
offering thereof and related matters, and (iv) such Debt Securities have
been duly executed, authenticated, issued and delivered in accordance with
both the provisions of the Senior Debt Indenture and either (a) the
provisions of the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein or (b) upon conversion, exchange, redemption or
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange, redemption or exercise as approved by the Board, for
the consideration approved by the Board, such Debt Securities will
constitute legal, valid and binding obligations of the Company.
4. With respect to Debt Securities to be issued under the Subordinated Debt
Indenture, when (i) the Subordinated Debt Indenture has been duly
authorized and validly executed and delivered by the Company to the
trustee, (ii) the Subordinated Debt Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended, (iii) the Board has
taken all necessary corporate action to approve and establish the terms of
such Debt Securities, to approve the issuance thereof and the terms of the
offering thereof and related matters, and (iv) such Debt Securities have
been duly executed, authenticated, issued and delivered in accordance with
both the provisions of the Subordinated Debt Indenture and either (a) the
provisions of the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein or (b) upon conversion, exchange, redemption or
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange, redemption or exercise as approved by the Board, for
the consideration approved by the Board, such Debt Securities will
constitute legal, valid and binding obligations of the Company.
5. With respect to Warrants, when (i) the Board has taken all necessary
corporate action to approve the creation of and the issuance and terms of
the Warrants, the terms of the offering thereof and related matters, (ii)
the Warrant Agreement or Agreements relating to the Warrants have been
duly authorized and validly executed and delivered by the Company and the
Warrant Agent appointed by the Company, and (iii) the Warrants or
certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the appropriate
Warrant Agreement or Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of
the consideration therefor provided for therein, the Warrants will be duly
authorized and validly issued and will constitute legal, valid and binding
obligations of the Company.
<PAGE> 4
Callon Petroleum Company
September 28, 1999
Page 4
6. With respect to Securities Purchase Contracts, when (i) the Board has
taken all necessary corporate action to approve the creation of and the
issuance and terms of the Securities Purchase Agreements, the terms of the
offering thereof and related matters, (ii) the Purchase Contract Agreement
or Agreements relating to the Securities Purchase Contracts have been duly
authorized and validly executed and delivered by the Company, and (iii)
the Securities Purchase Contracts have been duly executed, countersigned,
registered and delivered in accordance with the appropriate Purchase
Contract Agreement or Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of
the consideration therefor provided for therein, the Securities Purchase
Contracts will be duly authorized and validly issued and will constitute
legal, valid and binding obligations of the Company.
Our opinions set forth above are subject to the effect of (a) applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws and
court decisions of general application (including without limitation statutory
or other laws regarding fraudulent or preferential transfers) relating to,
limiting or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of any of the
remedies, covenants or other provisions of the Debt Securities, the Indentures,
the Warrants, the Warrant Agreements, the Securities Purchase Contracts, the
Purchase Contract Agreements and the Certificate of Designations and the
availability of injunctive relief or other equitable remedies and (c) the
application of principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights generally.
In addition, we express no opinion as to: (a) any provisions of the Debt
Securities, the Indentures, the Warrant Agreements, the Warrants, the
Securities Purchase Contracts, the Purchase Contract Agreements or the
Certificate of Designations regarding the remedies available to any person (1)
to take action that is arbitrary, unreasonable or capricious or is not taken in
good faith or in a commercially reasonable manner, whether or not such action
is permitted under the Debt Securities, the Indentures, the Warrant Agreements,
the Warrants, the Securities Purchase Contracts, the Purchase Contract
Agreements or the Certificate of Designations or (2) for violations or breaches
that are determined by a court to be non-material or without substantially
adverse effect upon the ability of the Company to perform its material
obligations under the Debt Securities, the Indentures, the Warrant Agreements,
the Warrants, the Securities Purchase Contracts, the Purchase Contract
Agreements or the Certificate of Designations; or (b) the provisions of the
Debt Securities or the Indentures that may provide for interest on interest or
penalty interest.
To the extent that the obligations of the Company under any Warrant Agreement
may be dependent upon such matters, we assume for purposes of this opinion that
the applicable Warrant Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities
<PAGE> 5
Callon Petroleum Company
September 28, 1999
Page 5
contemplated by the Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and constitutes the
valid and binding obligation of the Warrant Agent enforceable against the
Warrant Agent in accordance with its terms; that the Warrant Agent is in
compliance, with respect to acting as a Warrant Agent under the Warrant
Agreement, with all applicable laws and regulations; and that the Warrant Agent
has the requisite organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
To the extent that the obligations of the Company under any Indenture may be
dependent upon such matters, we assume for purposes of this opinion that the
Trustee is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by such Indenture; that such Indenture
has been duly authorized, executed and delivered by the Trustee and constitutes
the valid and binding obligation of the Trustee enforceable against the Trustee
in accordance with its terms; that the Trustee is in compliance, with respect
to acting as a trustee under such Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under such Indenture.
The foregoing opinions are limited to the laws of the United States of America
and to the General Corporation Law of the State of Delaware.
This opinion letter has been prepared for your use in connection with the
Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to
the Registration Statement. We also consent to the reference to our Firm under
the heading "Legal Matters" in the Prospectus forming a part of the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ HAYNES AND BOONE, LLP
<PAGE> 1
Exhibit 12.1
Calculation of Ratio of Earnings to Fixed Charges
(in thousands, except ratios)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30,
1994 1995 1996 1997 1998 1999
-------- -------- -------- -------- -------- --------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Earnings (Loss) before income taxes $ (313) $ 1,055 $ 5,508 $ 12,637 $(45,854) $ 1,056
Total interest expense (1) 624 2,182 4,898 8,599 10,577 6,306
-------- -------- -------- -------- -------- --------
PRETAX EARNINGS (LOSS) PLUS INTEREST EXPENSE $ 311 $ 3,237 $ 10,406 $ 21,236 $(35,277) $ 7,362
======== ======== ======== ======== ======== ========
FIXED CHARGES
Interest expense $ 624 $ 1,794 $ 313 $ 1,957 $ 1,925 $ 2,471
Interest capitalized -- -- 350 2,407 4,441 1,735
-------- -------- -------- -------- -------- --------
FIXED CHARGES $ 624 $ 1,794 $ 663 $ 4,364 $ 6,366 $ 4,206
Preferred stock dividend requirement (2) -- 388 4,235 4,235 4,211 2,100
-------- -------- -------- -------- -------- --------
COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS $ 624 $ 2,182 $ 4,898 $ 8,599 $ 10,577 $ 6,306
======== ======== ======== ======== ======== ========
RATIOS
Ratio of earnings to fixed charges (3) -- 1.6 8.8 3.3 -- --
Ratio of earnings to combined fixed charges
and preferred dividends (4) -- 1.3 1.2 1.7 -- --
</TABLE>
(1) Total interest expense includes, if any, an interest component of rental
expense and amortization of debt issuance cost.
(2) Preferred stock dividends represent the pretax earnings from continuing
operations that would be required to cover dividends on the Company's
preferred stock.
(3) Earnings did not cover fixed charges by $679,000 through the second
quarter of 1999, $50.3 million in 1998 and $313,000 in 1994.
(4) Earnings did not cover combined fixed charges and preferred stock
dividends by $2.7 million through the second quarter of 1999 and $54.5
million in 1998 and $313,000 in 1994.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated February 19, 1999 on the financial statements of Callon Petroleum Company
(and to all references to our Firm) included in or made a part of this
Registration Statement of Callon Petroleum Company.
/s/ ARTHUR ANDERSEN LLP
------------------------
New Orleans, Louisiana
September 27, 1999
<PAGE> 1
EXHIBIT 23.3
[HUDDLESTON & CO., INC. LETTERHEAD]
September 23, 1999
CONSENT OF INDEPENDENT PETROLEUM AND GEOLOGICAL ENGINEERS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our reserve
reports relating to the oil and gas reserves of Callon Petroleum Company at
December 31, 1998, and June 1, 1999. We also consent to the references to us
under the heading "Experts" and elsewhere in such Prospectus and the documents
incorporated by reference therein.
HUDDLESTON & CO., INC.
/s/ PETER D. HUDDLESTON, P.E.
--------------------------------
Peter D. Huddleston, P.E.
President
PDH:smr
