As filed with the Securities and Exchange Commission on July 28, 2015
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE
SECURITIES ACT OF 1933
ERIN ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware
(State or other jurisdiction of
incorporation or organization) |
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30-0349798
(I.R.S. Employer
Identification No.) |
1330 Post Oak Blvd., Suite 2250
Houston, Texas 77056
(713)
797-2940
(Address, including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Nicolas Evanoff
Senior
Vice President, General Counsel
and Secretary
Erin Energy Corporation
1330 Post Oak Blvd., Suite 2250
Houston, Texas 77056
(713)
797-2940
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
John D.
Geddes
Baker Botts L.L.P.
910 Louisiana Street
Houston, Texas 77002-4995
(713) 229-1234
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 to be 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, as amended (the “Securities Act”), 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 this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See definition of “accelerated filer,” “large accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check One).
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| Large accelerated filer |
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Accelerated filer |
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¨ (Do not check if smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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| Title of Each Class of
Securities to be Registered |
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Amount to be Registered/Proposed
Maximum Offering Price Per Unit/
Proposed Maximum Aggregate
Offering Price |
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Amount of
Registration Fee |
| Common Stock, Preferred Stock, Debt Securities, Warrants |
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(1)(2) |
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(1)(2) |
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An indeterminate number or amount of each identified class of securities as may be issued from time to time at indeterminate prices. |
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In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant hereby defers payment of all of the registration fee, except for $3,016 of unutilized fees. Pursuant to Rule 457(p) under the
Securities Act, such unutilized filing fee may be applied to any filing fees payable pursuant to this Registration Statement. The $3,016 of unutilized filing fees was previously paid by the registrant in connection with the registration of
$362,341,836 aggregate offering price of securities pursuant to the Registration Statement on Form S-3 (Registration No. 333-167013) initially filed with the Securities and Exchange Commission on May 21, 2010. In accordance with Rules 456(b) and
457(r) under the Securities Act, the registrant is deferring payment of all other registration fees which may subsequently be payable following application of the above-referenced pre-paid filing fees. |
Prospectus
Erin Energy Corporation
Debt Securities
Preferred Stock
Common
Stock
Warrants
We may issue
and sell from time to time securities described in this prospectus. This prospectus contains summaries of the general terms of the securities. At the time of each offering, we will provide the specific terms of the offering and the securities in
supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully before you invest. Our shares of common stock are listed on the NYSE MKT LLC under the symbol “ERN” and on the Johannesburg Stock
Exchange under the symbol “ERN.”
As of July 24, 2015, the aggregate market value of our outstanding common stock held by
non-affiliates was $338,569,083.00, based on 212,789,916 shares of outstanding common stock, of which 90,044,969 were held by non-affiliates, and the last reported sale price of our common stock on that day of $3.76 per share.
Investing in our securities involves risks. Please carefully review the information under the heading “Risk Factors
” on page 1. In addition, risks associated with any investment in our securities may be described in the applicable prospectus supplement and certain of our filings with the Securities and Exchange Commission, as described in “Risk
Factors.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is July 28, 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission using a “shelf”
registration process. Under this shelf registration process, we may offer any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may
offer. Each time we use this prospectus to offer securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the securities being offered. The prospectus supplement may also add to,
update or change the information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with additional or different information. This prospectus may only be used where it is legal to sell the offered securities. You should assume that the information in this prospectus is accurate only as of the
date on the front cover of this prospectus and that the information incorporated by reference in this prospectus is accurate only as of the date the respective information was filed with the Securities and Exchange Commission. Our business,
financial condition, results of operations and prospects may have changed since those dates.
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ABOUT ERIN ENERGY CORPORATION
We are an independent oil and gas exploration and production company focused on energy resources in Africa. Our strategy is to acquire and
develop high-potential exploration and production assets in Africa, and to explore and develop those assets through strategic partnerships with national oil companies, indigenous local partners and other independent oil companies. We seek to build
and operate a strategic portfolio of high-impact exploration and near-term development projects with significant production, reserves and resources growth potential.
We actively manage investments and on-going operations by limiting capital exposure through farm-outs at various stages of exploration and
development to share risks and costs. We prioritize on building a strong technical and operational team and place an emphasis on the utilization of modern oil field technologies that mature our assets, reduce the cost of our projects and improve the
efficiency of our operations.
Our asset portfolio consists of nine licenses across four countries covering an area of approximately
10 million acres (approximately 43,000 square kilometers). We own producing properties and conduct exploration activities as an operator offshore Nigeria, conduct exploration activities as an operator onshore and offshore Kenya, conduct
exploration activities as an operator offshore the Gambia, and conduct exploration activities as an operator offshore Ghana.
Our
operating subsidiaries include CAMAC Petroleum Limited, CAMAC Energy Kenya Limited, CAMAC Energy Gambia Limited, and CAMAC Energy Ghana Limited.
Our principal executive offices are located at 1330 Post Oak Boulevard, Suite 2250, Houston, TX 77056, and our telephone number is
(713) 797-2940.
RISK FACTORS
An investment in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider the risks
described under “Risk Factors” in the applicable prospectus supplement and in our most recent Annual Report on Form 10-K and any updates in our Quarterly Reports on Form 10-Q and other reports and documents we file with the SEC after the
date of this prospectus, together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light of your particular investment objectives and
financial circumstances. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risk factors, and you may lose
all or any part of your investment. When we offer and sell any securities pursuant to a prospectus supplement, we may include additional risk factors relevant to the offering in the prospectus supplement.
FORWARD-LOOKING STATEMENTS
This prospectus includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Exchange Act. All statements, other than statements of historical fact, in this prospectus, including, without limitation, statements regarding our future financial position, business strategy, budgets, projected
revenues, projected costs and plans and objectives of management for future operations, are, or may be deemed to be, forward-looking statements. Such forward-looking statements involve assumptions, known and unknown risks, uncertainties and other
factors, which may cause the actual results, performance or achievements of the Company, to be materially different from historical earnings and those presently anticipated or projected or any future results, performance or achievements expressed or
implied by such forward-looking statements contained in this report.
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In addition, forward-looking statements generally can be identified by the use of forward-looking
terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “forecast,” “goal,” “intend,” “may,” “objective,”
“plan,” “potential,” “predict,” “project,” “should,” “will,” “will likely,” or similar expressions. Although we believe that the expectations reflected in such forward-looking
statements are reasonable, we can give no assurance that such expectations will prove to have been correct. We caution you not to place undue reliance on any such forward-looking statements, which speak only as of the date made. Important factors
that could affect our financial performance and that could cause actual results for future periods to differ materially from our expectations include, but are not limited to:
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the supply, demand and market prices of oil and natural gas; |
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our current and future indebtedness; |
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our ability to raise capital to fund our current and future operations; |
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our ability to develop oil and gas reserves; |
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competition from other companies in the energy market; |
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political instability and foreign government regulations over international operations; |
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our lack of diversification of production and reserves; |
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compliance and enforcement of environmental laws and regulations; |
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our ability to achieve profitability; |
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our dependency on third parties to enable us to produce and deliver oil and gas; and |
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other factors disclosed under “Risk Factors” and elsewhere in this prospectus. |
We
have based our forward-looking statements on our management’s beliefs and assumptions based on information available to our management at the time the statements are made. We caution you that assumptions, beliefs, expectations, intentions and
projections about future events may and often do vary materially from actual results. Therefore, we cannot assure you that actual results will not differ materially from those expressed or implied by our forward-looking statements.
Some of the risk factors that could cause actual results to differ from those expressed or implied in forward-looking statements are described
under “Risk Factors” and in other sections of this prospectus. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual outcomes may vary materially from those indicated. All
subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by reference to these risks and uncertainties. You should not place undue reliance on our
forward-looking statements. Each forward-looking statement speaks only as of the date of the particular statement, and, except as required by law, we undertake no duty to update or revise any forward-looking statement.
USE OF PROCEEDS
Unless specified otherwise in the applicable prospectus supplement, we expect to use the net proceeds we receive from the sale of securities
offered by this prospectus and the accompanying prospectus supplement for general corporate purposes, which may include, among other things: acquisitions, capital expenditures, investments, working capital and repayment of debt.
The precise amount and timing of the application of such proceeds will depend upon our funding requirements and the availability and cost of
other capital. Pending any specific application, we may initially invest funds in short-term marketable securities or apply them to the reduction of short-term indebtedness. Additional information on the use of net proceeds from the sale of
securities covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
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RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth our ratios of earnings to fixed charges on a consolidated basis for each of the periods indicated:
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Three
Months
Ended
March 31, |
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Years Ended December 31, |
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2015 |
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Due to the Company’s net loss for the three months ended March 31, 2015 and for the years 2014, 2013, 2012, 2011 and 2010, its earnings were insufficient to cover its fixed charges by $34.3 million, $96.3
million, $43.5 million, $32.7 million, $24.0 million and $230.4 million, respectively. |
For purposes of this table,
“earnings” consists of income before income taxes plus fixed charges and less capitalized interest. “Fixed charges” consists of interest expense and capitalized interest. We had no preferred stock outstanding for any period
presented, and accordingly, the ratio of earnings to combined fixed charges and preferred stock dividends is the same as the ratio of earnings to fixed charges.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our general unsecured obligations. We will issue senior debt securities under an
indenture to be entered into between us and a trustee we will name in the prospectus supplement relating to senior debt securities. We refer to this indenture as the senior indenture. We will issue subordinated debt securities under an indenture to
be entered into between us and a trustee we will name in the prospectus supplement relating to subordinated debt securities. We refer to this indenture as the subordinated indenture. We refer to the senior indenture and the subordinated indenture
collectively as the indentures. The indentures will be substantially identical, except for provisions relating to subordination.
We have
summarized material provisions of the indentures and the debt securities below. This summary is not complete. We have filed the forms of indentures with the SEC as exhibits to the registration statement, and you should read the indentures for
provisions that may be important to you. Please read “Where You Can Find More Information.”
In this summary description of the
debt securities, unless we state otherwise or the context clearly indicates otherwise, all references to “we,” “us” or “our” refer to Erin Energy Corporation only and not to any of its subsidiaries.
General
Neither indenture limits the
amount of debt securities that may be issued under that indenture, and neither limits the amount of other unsecured debt or securities that we may issue. We may issue debt securities under the indentures from time to time in one or more series, each
in an amount authorized prior to issuance.
The senior debt securities will constitute our senior unsecured indebtedness and will rank
equally in right of payment with all of our other unsecured and unsubordinated debt and senior in right of payment to all of our subordinated indebtedness. The senior debt securities will be effectively subordinated to, and thus have a junior
position to, our secured indebtedness with respect to the assets securing that indebtedness. The subordinated debt securities will rank junior to all of our senior indebtedness and may rank equally with or senior to other subordinated indebtedness
we may issue from time to time.
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We currently conduct our operations through subsidiaries, and our operating income and cash flow
are generated by our subsidiaries. As a result, cash we obtain from our subsidiaries is the principal source of funds necessary to meet our debt service obligations. Contractual provisions or laws, as well as our subsidiaries’ financial
condition and operating requirements, may limit our ability to obtain cash from our subsidiaries that we require to pay our debt service obligations, including payments on the debt securities. In addition, holders of the debt securities will have a
junior position to the claims of creditors, including trade creditors and tort claimants, of our subsidiaries on their assets and earnings.
Neither indenture contains any covenants or other provisions designed to protect holders of the debt securities in the event we participate in
a highly leveraged transaction or upon a change of control. The indentures also do not contain provisions that give holders of the debt securities the right to require us to repurchase their securities in the event of a decline in our credit rating
for any reason, including as a result of a takeover, recapitalization or similar restructuring or otherwise.
Terms
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These
terms will include some or all of the following:
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whether the debt securities will be senior or subordinated debt securities; |
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the price at which we will issue the debt securities; |
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the title of the debt securities; |
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the total principal amount of the debt securities; |
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whether we will issue the debt securities in individual certificates to each holder or in the form of temporary or permanent global securities held by a depositary on behalf of holders; |
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the date or dates on which the principal of and any premium on the debt securities will be payable; |
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any interest rate, the date from which interest will accrue, interest payment dates and record dates for interest payments; |
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whether and under what circumstances we will pay any additional amounts with respect to the debt securities; |
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the place or places where payments on the debt securities will be payable; |
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any provisions for optional redemption or early repayment; |
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any sinking fund or other provisions that would obligate us to redeem, purchase or repay the debt securities; |
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the denominations in which we will issue the debt securities if other than $1,000 and integral multiples of $1,000; |
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whether payments on the debt securities will be payable in foreign currency or currency unit or another form and whether payments will be payable by reference to any index or formula; |
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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; |
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any additional means of defeasance of the debt securities, any additional conditions or limitations to defeasance of the debt securities or any changes to those conditions or limitations; |
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any changes or additions to the events of default or covenants described in this prospectus; |
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any restrictions or other provisions relating to the transfer or exchange of debt securities; |
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any terms for the conversion or exchange of the debt securities for other securities; |
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with respect to the subordinated indenture, any changes to the subordination provisions for the subordinated debt securities; and |
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any other terms of the debt securities not inconsistent with the applicable indenture. |
We may
sell the debt securities at a discount, which may be substantial, below their stated principal amount. These debt securities may bear no interest or interest at a rate that at the time of issuance is below market rates. If we sell these debt
securities, we will describe in the prospectus supplement any material United States federal income tax consequences and other special considerations.
If we sell any of the debt securities for any foreign currency or currency unit or if payments on the debt securities are payable in any
foreign currency or currency unit, we will describe in the prospectus supplement the restrictions, elections, tax consequences, specific terms and other information relating to those debt securities and the foreign currency or currency unit.
Subordination
Under the subordinated
indenture, payment of the principal of and any premium and interest on the subordinated debt securities will generally be subordinated and junior in right of payment to the prior payment in full of all Senior Debt (as defined below). Unless we
inform you otherwise in the prospectus supplement, we may not make any payment of principal of or any premium or interest on the subordinated debt securities if:
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we fail to pay the principal, interest, premium or any other amounts on any Senior Debt when due; or |
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we default in performing any other covenant (a “covenant default”) on any Senior Debt that we have designated if the covenant default allows the holders of that Senior Debt to accelerate the maturity of the
Senior Debt they hold. |
Unless we inform you otherwise in the prospectus supplement, a covenant default will prevent us from
paying the subordinated debt securities only for up to 179 days after holders of the designated Senior Debt give the trustee for the subordinated debt securities notice of the covenant default.
The subordination does not affect our obligation, which is absolute and unconditional, to pay, when due, the principal of and any premium and
interest on the subordinated debt securities. In addition, the subordination does not prevent the occurrence of any default under the subordinated indenture.
The subordinated indenture does not limit the amount of Senior Debt that we may incur. As a result of the subordination of the subordinated
debt securities, if we become insolvent, holders of subordinated debt securities may receive less on a proportionate basis than other creditors.
Unless we inform you otherwise in the prospectus supplement, “Senior Debt” will mean all of our indebtedness, including guarantees,
unless the indebtedness states that it is not senior to the subordinated debt securities or our other junior debt. Senior Debt with respect to a series of subordinated debt securities could include other series of debt securities issued under the
subordinated indenture.
Consolidation, Merger and Sales of Assets
The indentures generally permit a consolidation or merger involving us. They also permit us to sell, lease, convey, assign, transfer or
otherwise dispose of all or substantially all of our assets. We have agreed, however, that we will not consolidate with or merge into any entity or sell, lease, convey, assign, transfer or dispose of all or substantially all of our assets to any
entity unless:
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we are the continuing entity, or |
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the resulting entity is organized under the laws of the United States, any state thereof, the District of Columbia, Australia, the Bahamas, Barbados,
Bermuda, the British Virgin Islands, the Cayman Islands, any of the Channel Islands, any member of the European Union (as constituted on the date of the indenture) or any other member of the European Union that becomes a member after
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that date, the Netherlands Antilles or any state, province or political subdivision of the foregoing, and assumes by a supplemental indenture the due and punctual payments on the debt securities
and the performance of our covenants and obligations under the indentures, |
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immediately after giving effect to the transaction, no default or event of default under the indentures has occurred and is continuing or would result from the transaction, and |
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in the case of the second bullet point under clause (1) above, in the event that the resulting entity is organized in a jurisdiction (other than the United States, any state thereof or the District of Columbia)
that is different from the jurisdiction in which the obligor on the debt securities was organized immediately before giving effect to the transaction: |
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such resulting entity delivers to the trustee an opinion of counsel stating that the obligations of the resulting entity under the applicable indenture are enforceable under the laws of the new jurisdiction of its
formation subject to customary exceptions and |
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the resulting entity agrees in writing to submit to New York jurisdiction and appoints an agent for the service of process in New York, each under terms satisfactory to the trustee. |
This covenant will not apply to any merger of another entity into us. Upon any transaction of the type described in and effected in accordance
with this section, the resulting entity will succeed to and be substituted for us and may exercise all of our rights and powers under the applicable indenture and the debt securities with the same effect as if the resulting entity had been named as
us in the indenture. In the case of any asset transfer or disposition other than a lease, when the resulting entity assumes all of our obligations and covenants under the applicable indenture and the debt securities, we will be relieved of all such
obligations.
Events of Default
Unless we inform you otherwise in the applicable prospectus supplement, the following are events of default with respect to a series of debt
securities:
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our failure to pay interest on any debt security of that series for 30 days when due; |
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our failure to pay principal of or any premium on any debt security of that series when due; |
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our failure to deposit any sinking fund payment for 30 days when due; |
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our failure to comply with any covenant or agreement in that series of debt securities or the applicable indenture (other than an agreement or covenant that has been included in the indenture solely for the benefit of
other series of debt securities) for 90 days after written notice by the trustee or by the holders of at least 25% in principal amount of the outstanding debt securities issued under that indenture that are affected by that failure;
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specified events involving bankruptcy, insolvency or reorganization of us; and |
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any other event of default provided for that series of debt securities. |
A default under one
series of debt securities will not necessarily be a default under any other series. If a default or event of default for any series of debt securities occurs, is continuing and is known to the trustee, the trustee will notify the holders of
applicable debt securities within 90 days after it occurs. The trustee may withhold notice to the holders of the debt securities of any default or event of default, except in any payment on the debt securities, if the trustee in good faith
determines that withholding notice is in the interests of the holders of those debt securities.
If an event of default for any series of
debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, 25% in principal amount of all debt securities
issued under the applicable indenture that are affected,
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voting as one class) may declare the principal of and all accrued and unpaid interest on those debt securities to be due and payable immediately. If an event of default relating to certain events
of bankruptcy, insolvency or reorganization of our company occurs, the principal of and accrued and unpaid interest on all the debt securities issued under the applicable indenture will become immediately due and payable without any action on the
part of the trustee or any holder. At any time after a declaration of acceleration has been made, the holders of a majority in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, of all debt
securities issued under the applicable indenture that are affected, voting as one class) may in some cases rescind this accelerated payment requirement and its consequences.
A holder of a debt security of any series issued under an indenture may pursue any remedy under that indenture only if:
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the holder gives the trustee written notice of a continuing event of default with respect to that series; |
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the holders of at least 25% in principal amount of the outstanding debt securities of that series make a written request to the trustee to pursue the remedy; |
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the holders offer to the trustee security or indemnity satisfactory to the trustee against any loss, liability or expense; |
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the trustee does not comply with the request within 60 days after receipt of the request and offer of security or indemnity; and |
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during that 60-day period, the holders of a majority in principal amount of the debt securities of that series do not give the trustee a direction inconsistent with the request. |
This provision does not, however, affect the right of a holder of a debt security to sue for enforcement of any overdue payment.
In most cases, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction
of any of the holders unless those holders have offered to the trustee security or indemnity satisfactory to it. Subject to this provision for security or indemnification, the holders of a majority in principal amount of the outstanding debt
securities of a series (or of all debt securities issued under the applicable indenture that are affected, voting as one class) generally may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or |
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exercising any trust or power conferred on the trustee relating to or arising as a result of an event of default. |
If an event of default occurs and is continuing, the trustee will be required to use the degree of care and skill of a prudent person in the
conduct of his own affairs.
The indentures require us to furnish to the trustee annually a statement as to our performance of certain of
our obligations under the indentures and as to any default in performance.
Modification and Waiver
We and the trustee may supplement or amend each indenture with the consent of the holders of at least a majority in principal amount of the
outstanding debt securities of all series issued under that indenture that are affected by the amendment or supplement (voting as one class). Without the consent of the holder of each debt security affected, however, no modification may:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce the rate of or change the time for payment of interest on the debt security; |
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reduce the principal of the debt security or change its stated maturity; |
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reduce any premium payable on the redemption of the debt security or change the time at which the debt security may or must be redeemed; |
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change any obligation to pay additional amounts on the debt security; |
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make payments on the debt security payable in currency other than as originally stated in the debt security; |
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impair the holder’s right to institute suit for the enforcement of any payment on or with respect to the debt security; |
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make any change in the percentage of principal amount of debt securities necessary to waive compliance with certain provisions of the indenture or to make any change in the provision related to modification;
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with respect to the subordinated indenture, modify the provisions relating to the subordination of any subordinated debt security in a manner adverse to the holder of that security; |
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waive a continuing default or event of default regarding any payment on the debt securities; or |
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if applicable, make any change that materially and adversely affects the right to convert any debt security. |
We and the trustee may supplement or amend each indenture or waive any provision of that indenture without the consent of any holders of debt
securities issued under that indenture in certain circumstances, including:
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to cure any ambiguity, omission, defect or inconsistency; |
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to provide for the assumption of our obligations under the indenture by a successor upon any merger, consolidation or asset transfer permitted under the indenture; |
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities or to provide for bearer debt securities; |
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to provide any security for, or to add any guarantees of or obligors on, any series of debt securities; |
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to comply with any requirement to effect or maintain the qualification of that indenture under the Trust Indenture Act of 1939; |
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to add covenants that would benefit the holders of any debt securities or to surrender any rights we have under the indenture; |
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to add events of default with respect to any series of debt securities; |
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to make any change that does not adversely affect any outstanding debt securities of any series issued under that indenture in any material respect; and |
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to establish the form or terms of any debt securities and to accept the appointment of a successor trustee, each as permitted under the indenture. |
The holders of a majority in principal amount of the outstanding debt securities of any series (or, in some cases, of all debt securities
issued under the applicable indenture that are affected, voting as one class) may waive any existing or past default or event of default with respect to those debt securities. Those holders may not, however, waive any default or event of default in
any payment on any debt security or compliance with a provision that cannot be amended or supplemented without the consent of each holder affected.
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Defeasance and Discharge
Defeasance. When we use the term defeasance, we mean discharge from some or all of our obligations under an indenture. If we deposit
with the trustee under an indenture any combination of money or government securities sufficient to make payments on the debt securities of a series issued under that indenture on the dates those payments are due, then, at our option, either of the
following will occur:
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we will be discharged from our obligations with respect to the debt securities of that series (“legal defeasance”); or |
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we will no longer have any obligation to comply with specified restrictive covenants with respect to the debt securities of that series, the covenant described under “ — Consolidation, Merger and Sales of
Assets” and other specified covenants under the applicable indenture, and the related events of default will no longer apply (“covenant defeasance”). |
If a series of debt securities is defeased, the holders of the debt securities of that series will not be entitled to the benefits of the
applicable indenture, except for obligations to register the transfer or exchange of debt securities, replace stolen, lost or mutilated debt securities or maintain paying agencies and hold money for payment in trust. In the case of covenant
defeasance, our obligation to pay principal, premium and interest on the debt securities will also survive.
Unless we inform you
otherwise in the prospectus supplement, we will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the debt securities to recognize income, gain or loss for U.S. federal
income tax purposes and that the holders would be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the deposit and related defeasance had not occurred. If we elect legal
defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
Under current U.S. federal income tax law, legal defeasance would likely be treated as a taxable exchange of debt securities to be defeased
for interests in the defeasance trust. As a consequence, a United States holder would recognize gain or loss equal to the difference between the holder’s cost or other tax basis for the debt securities and the value of the holder’s
interest in the defeasance trust, and thereafter would be required to include in income a share of the income, gain or loss of the defeasance trust. Under current U.S. federal income tax law, covenant defeasance would not be treated as a taxable
exchange of such debt securities.
Satisfaction and Discharge. In addition, an indenture will cease to be of further effect with
respect to the debt securities of a series issued under that indenture, subject to exceptions relating to compensation and indemnity of the trustee under that indenture and repayment to us of excess money or government securities, when:
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all outstanding debt securities of that series have been delivered to the trustee for cancellation; or |
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all outstanding debt securities of that series not delivered to the trustee for cancellation either: |
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have become due and payable, |
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will become due and payable at their stated maturity within one year, or |
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are to be called for redemption within one year; and |
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we have deposited with the trustee any combination of money or government securities in trust sufficient to pay the entire indebtedness on the debt securities of that series when due; and |
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we have paid all other sums payable by us with respect to the debt securities of that series. |
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Governing Law
New York law will govern the indentures and the debt securities.
The Trustees
We will name the trustee
under the applicable indenture in the prospectus supplement. Each indenture contains limitations on the right of the trustee, if it or any of its affiliates is then our creditor, to obtain payment of claims or to realize on certain property received
for any such claim, as security or otherwise. The trustee and its affiliates are permitted to engage in other transactions with us. If, however, the trustee acquires any conflicting interest, it must eliminate that conflict or resign within 90 days
after ascertaining that it has a conflicting interest and after the occurrence of a default under the applicable indenture, unless the default has been cured, waived or otherwise eliminated within the 90-day period.
Payment and Paying Agents
Unless we
inform you otherwise in a prospectus supplement, we will make payments on the debt securities in U.S. dollars at the office of the trustee and any paying agent. At our option, however, payments may be made by wire transfer for global debt securities
or by check mailed to the address of the person entitled to the payment as it appears in the security register. Unless we inform you otherwise in a prospectus supplement, we will make interest payments to the person in whose name the debt security
is registered at the close of business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus
supplement, the trustee under the applicable indenture will be designated as the paying agent for payments on debt securities issued under that indenture. 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.
If the principal of or any premium or interest on debt
securities of a series is payable on a day that is not a business day, the payment will be made on the following business day. For these purposes, unless we inform you otherwise in a prospectus supplement, a “business day” is any day that
is not a Saturday, a Sunday or a day on which banking institutions in any of New York, New York, Houston, Texas or a place of payment on the debt securities of that series is authorized or obligated by law, regulation or executive order to remain
closed.
Subject to the requirements of any applicable abandoned property laws, the trustee and paying agent will pay to us upon written
request any money held by them for payments on the debt securities that remains unclaimed for two years after the date upon which that payment has become due. After payment to us, holders entitled to the money must look to us for payment. In that
case, all liability of the trustee or paying agent with respect to that money will cease.
Form, Exchange, Registration and Transfer
We will issue the debt securities in registered form, without interest coupons. Debt securities of any series will be exchangeable for other
debt securities of the same series, the same total principal amount and the same terms but in different authorized denominations in accordance with the applicable indenture. Holders may present debt securities for registration of transfer at the
office of the security registrar or any transfer agent designated by us. The security registrar or transfer agent will effect the transfer or exchange if its requirements and the requirements of the applicable indenture are met. We will not charge a
service charge for any registration of transfer or exchange of the debt securities. We may, however, require payment of any transfer tax or similar governmental charge payable for that registration.
We will appoint the trustee as security registrar for the debt securities. If a prospectus supplement refers to any transfer agents we
initially designate, we may at any time rescind that designation or approve a change in the location through which any transfer agent acts. We are required to maintain an office or agency for transfers and exchanges in each place of payment. We may
at any time designate additional transfer agents for any series of debt securities.
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In the case of any redemption of debt securities of a series or any repurchase of debt securities
of a series required under the terms of the series, we will not be required to register the transfer or exchange of:
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any debt security of that series during a period beginning 15 business days prior to the mailing of the relevant notice of redemption or repurchase and ending on the close of business on the day of mailing of such
notice; or |
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any debt security of that series that has been called for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. |
Book-Entry Debt Securities
We may issue
the debt securities of a series in the form of one or more global debt securities that would be deposited with a depositary or its nominee identified in the prospectus supplement. We may issue global debt securities in either temporary or permanent
form. We will describe in the prospectus supplement the terms of any depositary arrangement and the rights and limitations of owners of beneficial interests in any global debt security.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 416,666,667 shares of Common Stock, $0.001 par value per share, and 50,000,000 shares
of Preferred Stock, $0.001 par value per share. No preferred stock was issued and outstanding as of July 28, 2015. The following is a summary of the rights of the Company’s authorized capital stock:
Common Stock
We are authorized to issue
up to 416,666,667 shares of common stock, par value $0.001 per share.
Each share of common stock entitles the holder to one vote on all
matters submitted to a vote of our stockholders. Action that is required or permitted to be taken by our shareholders at any annual or special meeting may be taken lieu of a meeting with the written consent of stockholders having not less than the
minimum percentage of the vote required by law for the proposed corporate action. Our shareholders are entitled to dividends in the amounts and at the times declared by our board of directors out of funds legally available for the payment of
dividends. If we are liquidated, dissolved or wound up, our shareholders will share pro rata in our assets after satisfaction of all of our liabilities and the prior rights of any outstanding class of preferred stock. Holders of outstanding shares
of our common stock have no preemptive, conversion or redemptive rights.
All of the issued and outstanding shares of our common stock are
duly authorized, validly issued, fully paid and non-assessable. To the extent that additional shares of our common stock are issued, the relative interests of existing stockholders will be diluted.
Our independent stock transfer agent is Continental Stock Transfer & Trust Company, 17 Battery Place, 8th Floor, New York, NY 10004.
Their telephone number is (212) 509-4000.
Undesignated Preferred Stock
Our Amended and Restated Certificate of Incorporation, as amended (the “Amended and Restated Certificate of Incorporation”), permits
us to issue up to 50,000,000 shares of our preferred stock in one or more series and with rights and preferences that may be fixed or designated by our board of directors without any further action by our stockholders.
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The rights of holders of common stock are subject to the rights of holders of any preferred
stock. Our board of directors is empowered, without approval of the stockholders, to cause shares of preferred stock to be issued in one or more series, with the number of shares of each series and the rights, preferences and limitations of each
series to be determined by it.
Among the specific matters that may be determined by the board of directors, and may be included in any
prospectus supplement relating to any series of preferred stock we are offering, are the following:
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the number of shares that shall constitute any such series and whether the number of shares may be increased or decreased by action of our board of directors; |
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the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of stock of any other class or classes; |
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any limitations or restrictions to be effective while any shares of any such series are outstanding upon the payment of dividends or the making of other distributions or upon the acquisition in any manner by the company
or any of our subsidiaries of any of the shares of the company’s common, preferred or other class or classes of stock; |
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the annual rate of dividends, if any, payable on the shares of any such series and the conditions upon which such dividends shall be payable; |
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when and at what price or prices (whether in cash or in debentures of the company) the shares of any such series shall be redeemable or, at the option of the company, exchangeable or both; |
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whether the shares of any such series shall be subject to the operation of any purchase, retirement or sinking fund or funds and, if so, the terms and provisions relative to the operation of any such fund or funds; and
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the amount payable on the shares of any such series in the event of voluntary liquidation, dissolution or winding up of the affairs of the company; and any other powers, preferences and relative, participating, option
and other special rights, and any qualifications, limitations and restrictions thereof. |
There will be no limitation or
restriction on any variation between any of the different series of preferred stock as to the designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof; and
the several series of preferred stock may, except as otherwise expressly provided in any prospectus supplement or document incorporated by reference, as applicable, vary in any and all respects as fixed and determined by the resolution or
resolutions of our board of directors or any committee thereof, providing for the issuance of the various series; provided, however, that all shares of any one series of preferred stock will have the same designation, preferences and
relative, participating, optional or other special rights and qualifications, limitations and restrictions.
Except as otherwise required
by law, or as otherwise fixed by resolution or resolutions of our board of directors with respect to one or more series of preferred stock, the entire voting power and all voting rights will be vested exclusively in the common stock, and each holder
of shares of our common stock who at the time possesses voting power for any purpose will be entitled to one vote for each share of such stock standing in such stockholder’s name on our books.
Anti-Takeover Provisions of Delaware Law and Charter Provisions
We are not subject to Section 203 of the Delaware General Corporation Law, which regulates corporate acquisitions. In general,
Section 203 prohibits a Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years following the date the person became an interested stockholder, unless:
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the board of directors approved the transaction in which such stockholder became an interested stockholder prior to the date the interested stockholder attained such status; |
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upon consummation of the transaction that resulted in the stockholder’s becoming an interested stockholder, he or she owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding shares owned by persons who are directors and also officers; or |
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the person became an interested stockholder, on or subsequent to such date the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders.
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A “business combination” generally includes a merger, asset or stock sale, or other transaction resulting in a
financial benefit to the interested stockholder. In general, an “interested stockholder” is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status, did
own, 15% or more of a corporation’s voting stock. Our decision to opt out of Section 203 would allow any interested stockholder to transfer shares in excess of 15% of our voting stock to a third party free of the restrictions imposed by
Section 203. This could make us more vulnerable to takeovers that are completed without the approval of our board of directors and without giving us the ability to prohibit or delay such takeovers as effectively. These provisions could also
limit the price that investors may be willing to pay in the future for shares of our common stock.
Our Amended and Restated Certificate
of Incorporation and Amended and Restated Bylaws contain various provisions intended to promote the stability of our stockholder base and render more difficult certain unsolicited or hostile attempts to take us over, that could disrupt us, divert
the attention of our directors, officers and employees and adversely affect the independence and integrity of our business. These provisions include:
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Special Meetings of Stockholders — Our Amended and Restated Bylaws provide that special meetings of the stockholders may only be called by our Chairman, our board of directors or upon written notice to our
board of directors by our stockholders holding not less than 25% of our outstanding voting capital stock held individually or in the aggregate. |
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Amendment of Bylaws — Our Amended and Restated Bylaws may be amended by our board of directors. |
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Advance Notice Procedures — Our Amended and Restated Bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders. At an annual meeting,
our stockholders elect a board of directors and transact such other business as may properly be brought before the meeting. By contrast, at a special meeting, our stockholders may transact only the business for the purposes specified in the notice
of the meeting. For shareholder proposals to be properly brought before an annual meeting, the proposal must comply with the advance notice procedures set forth in the bylaws. To be timely, such shareholder’s notice generally must be delivered
to the our secretary at our principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the anniversary of the previous annual meeting. |
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No cumulative voting — Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws do not include a provision for cumulative voting in the election of directors. |
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Vacancies — Our Amended and Restated Bylaws provide that vacancies on our board may be filled by a majority of directors in office, although less than a quorum, and not by the stockholders.
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Preferred Stock — Our Amended and Restated Certificate of Incorporation allows us to issue up to 50,000,000 shares of undesignated preferred stock with rights senior to those of the common stock and that
otherwise could adversely affect the rights and powers, including voting rights, of the holders of common stock. In some circumstances, this issuance could have the effect of decreasing the market price of the common stock as well as having the
anti-takeover effect discussed above. |
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Authorized but Unissued Shares — Our board of directors may cause us to issue our authorized but unissued shares of common stock in the
future without stockholders’ approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional |
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capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain control
of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise. |
DESCRIPTION OF WARRANTS
We may issue warrants to purchase any combination of debt securities, common stock, preferred stock or
other securities of our company or any other entity. We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to or separate from the other securities. We will issue warrants under
one or more warrant agreements between us and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement
relating to any warrants we are offering will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you. The
prospectus supplement will include some or all of the following terms:
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the title of the warrants; |
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the aggregate number of warrants offered; |
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the designation, number and terms of the debt securities, common stock, preferred stock or other securities purchasable upon exercise of the warrants, and procedures by which those numbers may be adjusted;
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the exercise price of the warrants; |
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the dates or periods during which the warrants are exercisable; |
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the designation and terms of any securities with which the warrants are issued; |
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable; |
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated; |
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any minimum or maximum amount of warrants that may be exercised at any one time; and |
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants. |
PLAN OF DISTRIBUTION
We may sell the securities on a delayed or continuous basis in and outside the United States through underwriters or dealers as designated
from time to time, directly to purchasers, through agents or through a combination of these methods.
Sale Through Underwriters or Dealers
If we use underwriters in the sale of securities, the underwriters will acquire the securities for their own account. The underwriters may
resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you
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otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to conditions, and the underwriters will be obligated to purchase all the
offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
Underwriters may sell shares of our common stock under this prospectus by any method permitted by law deemed to be an “at the
market” offering as defined in Rule 415 under the Securities Act of 1933, which includes sales made directly on the NYSE MKT LLC, on any other existing trading market for our common stock or to or through a market maker, or in privately
negotiated transactions. Unless we inform you otherwise in the prospectus supplement, the sales agent with respect to any such at-the-market offering will make all sales using commercially reasonable efforts consistent with its normal trading and
sales practices, on mutually agreeable terms between the sales agent and us. We will include in the prospectus supplement the amount of any compensation to be received by the sales agent.
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 also may impose a penalty bid, which means that 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 the 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, the underwriters may discontinue these activities at
any time.
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. The dealers participating in any sale of the securities may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of
those securities. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales
Through Agents
We may sell the securities directly. In that event, no underwriters or agents would be involved. We may also sell the
securities through agents we designate from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable by us to the agent. Unless we inform
you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers
from certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject
only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
Remarketing
We may offer and sell any of
the securities in connection with a remarketing upon their purchase, in accordance with a redemption or repayment by their terms or otherwise, by one or more remarketing firms acting
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as principals for their own accounts or as our agents. We will identify any remarketing firm, the terms of any remarketing agreement and the compensation to be paid to the remarketing firm in the
prospectus supplement. Remarketing firms may be deemed underwriters under the Securities Act.
Derivative Transactions
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third parties may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those
derivatives to close out any related open borrowings of stock. The third parties in these sale transactions will be underwriters and will be identified in the applicable prospectus supplement or in a post-effective amendment to the registration
statement of which this prospectus forms a part.
General Information
We may have agreements with the agents, dealers and underwriters to indemnify them against certain civil liabilities, including liabilities
under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters may be customers of, engage in transactions with or perform services for us in the
ordinary course of their businesses.
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon for us by Baker Botts L.L.P., Houston, Texas. Any underwriters will
be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The audited financial statements and management’s assessment of the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, upon the authority of said
firm as experts in accounting and auditing.
Certain estimates of our proved oil and gas reserves have been incorporated by reference
herein in reliance upon engineering reports prepared by DeGolyer and MacNaughton, independent petroleum engineers, incorporated by reference herein, and upon the authority of said firm as experts in such matters.
No expert or counsel named in this prospectus as having prepared or certified any part of this prospectus or having given an opinion upon the
validity of the securities being registered or upon other legal matters in connection with the registration or offering of the securities was employed on a contingency basis, or had, or is to receive, in connection with the offering, a substantial
interest, direct or indirect, in the registrant or any of its parents or subsidiaries. Nor was any such person connected with the registrant or any of its parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee,
director, officer or employee.
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WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. You can read and copy any materials we file with the SEC at the
SEC’s public reference room at 100 F Street, NE, Washington, D.C. 20549. You can obtain information about the operation of the SEC’s public reference room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a Web site that
contains information we file electronically with the SEC, which you can access over the Internet at http://www.sec.gov. You can obtain information about us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we have filed with the SEC relating to the securities we may offer. As permitted by
SEC rules, this prospectus does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules we file with the SEC. You may refer to the registration statement, the exhibits and the
schedules for more information about us and our securities. The registration statement, exhibits and schedules are available at the SEC’s public reference room or through its Web site.
We are incorporating by reference information we file with the SEC, which means that we are disclosing important information to you by
referring you to those documents. The information we incorporate by reference is an important part of this prospectus, and later information that we file with the SEC automatically will update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (excluding any information “furnished” but not “filed,” unless
we specifically provide that such “furnished” information is to be incorporated by reference) until the termination of the offering:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed March 16, 2015; |
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed May 8, 2015; |
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Our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 30, 2015 (but only with respect to information included therein that is required by Part III of our Annual Report on Form 10-K for the
fiscal year ended December 31, 2014 and excluding any such information that is deemed to have been furnished and not filed); |
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Our Current Reports on Form 8-K filed on January 14, 2015 (Item 1.02 only), April 23, 2015, May 8, 2015 (Item 5.02 only) and May 29, 2015 (Items 1.01 and 5.07 only). |
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The description of our common stock, $0.001 par value per share, contained in our Registration Statement on Form 8-A, filed on November 3, 2009 pursuant to Section 12(b) of the Exchange Act. |
The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained
in any such filing will be deemed to be a part of this prospectus, commencing on the date on which the document is filed.
You may request
a copy of these filings, at no cost, by written or oral request made to us to the attention of: Secretary, 1330 Post Oak Boulevard, Suite 2250, Houston, TX 77056, Tel.: (713) 797-2940. If you request a copy of any or all of the documents
incorporated by reference, we will send to you the copies you request. However, we will not send exhibits to the documents, unless the exhibits are specifically incorporated by reference in the documents.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses to be paid by Erin Energy Corporation, a Delaware corporation (the
“Company”), in connection with the offering described in this Registration Statement.
|
|
|
|
|
| Registration fee |
|
|
(1 |
) |
| Printing expenses |
|
|
(2) |
|
| Accounting fees and expenses |
|
|
(2) |
|
| Legal fees and expenses |
|
|
(2) |
|
| Trustee fees and expenses |
|
|
(2) |
|
| Rating agency fees |
|
|
(2) |
|
| Miscellaneous |
|
|
(2) |
|
|
|
|
|
|
| Total |
|
|
(2) |
|
|
|
|
|
|
| (1) |
Pursuant to Rule 457(p) under the Securities Act, $3,016 of the filing fees previously paid with respect to registrant’s registration statement 333-167013, filed on May 21, 2010, relates to securities which remain
unsold as of this date, and are being offset against registration fees to become due under all offerings that may hereinafter be made under this Registration Statement. In accordance with Rules 456(b) and 457(r) under the Securities Act, the
registrant is deferring payment of all other registration fees which may subsequently be payable following application of the above-referenced pre-paid filing fees. Accordingly, applicable SEC filing fees are not estimated at this time.
|
| (2) |
Because an indeterminate amount of securities are covered by this Registration Statement and the number of offerings are indeterminable, the expenses in connection with the issuance and distribution of the securities
are not currently determinable. |
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually
and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other
adjudicating court shall deem proper.
II-1
Section 145(g) of the Delaware General Corporation Law provides, in general, that a
corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify the person against such liability under Section 145 of the Delaware General Corporation Law.
Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws provide for the indemnification to the fullest extent
permitted by law any person made or threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that such person, or a person of whom he or she is the legal
representative, is or was our director or officer, or serves or served any other enterprise as a director or officer at our request. Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws also provide that, to the
fullest extent permitted by law, we may provide for the indemnification of, and advancement of expenses to, any agents of the Company (and any other persons to which Delaware law permits the Company to provide indemnification) through Bylaw
provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law,
subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to the Company, its stockholders and others. This indemnification policy could result in substantial expenditure by
us, which we may be unable to recoup.
Insofar as indemnification by us for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to provisions of the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, or otherwise, we have been advised that in the opinion of the SEC, such
indemnification is against public policy and is, therefore, unenforceable. In the event that a claim for indemnification by such director, officer or controlling person of us 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 offered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The registrant also has entered into indemnification agreements with its executive officers and directors and provides indemnity insurance
pursuant to which directors and officers are indemnified or insured against liability or loss under certain circumstances which may include liability, or related loss under the Securities Act and the Exchange Act.
Item 16. Exhibits.
See Exhibit
Index.
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; |
| |
(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 |
II-2
| |
in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
| |
(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), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934, that are incorporated
by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
| |
(2) |
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
(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. |
| |
(4) |
That, for the purpose of determining liability under the Securities Act to any purchaser: |
| |
(A) |
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration
Statement; and |
| |
(B) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the Registration Statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the Registration Statement relating to the securities in the Registration Statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference into the Registration
Statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the Registration Statement or prospectus that
was part of the Registration Statement or made in any such document immediately prior to such effective date. |
| |
(5) |
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the
securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to the Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the |
II-3
| |
securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser: |
| |
(i) |
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| |
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
| |
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
|
| |
(iv) |
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| |
(b) |
The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
(c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| |
(d) |
The undersigned registrant hereby undertakes that: |
| |
(1) |
For purposes of determining any liability under the Securities Act 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. |
| |
(e) |
The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of each of the Senior Trustee and the Subordinated Trustee to act under subsection (a) of section
310 of the Trust Indenture Act of 1939 (the “Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act. |
II-4
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, Texas, on this 28th day of July, 2015.
|
|
|
| ERIN ENERGY CORPORATION |
|
|
| By: |
|
/s/ Dr. Kase Lukman Lawal |
|
|
Dr. Kase Lukman Lawal |
|
|
Chief Executive Officer |
|
|
| By: |
|
/s/ Christopher J. Hearne |
|
|
Christopher J. Hearne |
|
|
Senior Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature to this Registration Statement on Form S-3 appears below hereby
constitutes and appoints Dr. Kase Lukman Lawal, Nicolas J. Evanoff and Heidi Wong and each of them, 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 any or all amendments (including post-effective amendments) to this Registration Statement (and any registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, for the offering which this Registration Statement relates), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, 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 connection therewith, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons
in the capacities indicated and on July 28, 2015.
|
|
|
|
|
| /s/ Dr. Kase Lukman Lawal
Dr. Kase Lukman Lawal |
|
Director and Chief Executive Officer
(Principal Executive Officer) |
|
|
| /s/ Christopher J. Hearne
Christopher J. Hearne |
|
Senior Vice President and Chief Financial Officer
(Principal Financial Officer) |
|
|
| /s/ Adama Traore
Adama Traore |
|
Vice President, Controller and Chief Accounting Officer
(Principal Accounting Officer) |
|
|
| /s/ Dr. Lee Patrick Brown
Dr. Lee Patrick Brown |
|
Director |
II-5
|
|
|
|
|
| /s/ William J. Campbell
William J. Campbell |
|
Director |
|
|
| /s/ Daniel M. Matjila
Daniel M. Matjila |
|
Director |
|
|
| /s/ John Hofmeister
John Hofmeister |
|
Director |
|
|
| /s/ Ira Wayne McConnell
Ira Wayne McConnell |
|
Director |
|
|
| /s/ Hazel O’Leary
Hazel O’Leary |
|
Director |
II-6
EXHIBIT INDEX
|
|
|
| Exhibit
No. |
|
Description of Exhibit |
|
|
| *4.1 |
|
Amended and Restated Certificate of Incorporation of the Company, dated May 3, 2007 (incorporated by reference to Exhibit 3.1 of our Form 10-SB filed on August 16, 2007). |
|
|
| *4.2 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated April 7, 2010 (incorporated by reference to Exhibit 3.1 of our Form 8-K filed on April 13, 2010). |
|
|
| *4.3 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated February 13, 2014 (incorporated by reference to Exhibit 3.1 of our Form 8-K filed on February 19, 2014). |
|
|
| *4.4 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated April 22, 2015 (incorporated by reference to Exhibit 3.1 of our Form 8-K filed on April 23, 2015). |
|
|
| *4.5 |
|
Amended and Restated Bylaws of the Company as of April 11, 2011 (incorporated by reference to Exhibit 3.1 of our Quarterly Report on Form 10-Q filed on May 3, 2011). |
|
|
| 4.6 |
|
Form of Indenture between the Company and the trustee thereunder (the “Senior Trustee”), relating to senior debt securities. |
|
|
| 4.7 |
|
Form of Indenture between the Company and the trustee thereunder (the “Subordinated Trustee”), relating to subordinated debt securities. |
|
|
| 5.1 |
|
Opinion of Baker Botts L.L.P. as to the legality of the securities. |
|
|
| 12.1 |
|
Computation of Ratio of Earnings to Fixed Charges. |
|
|
| 23.1 |
|
Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm. |
|
|
| 23.2 |
|
Consent of Baker Botts L.L.P. (included in Exhibit 5.1). |
|
|
| 23.3 |
|
Consent of DeGolyer and MacNaughton, Independent Petroleum Engineering Firm. |
|
|
| 24.1 |
|
Powers of Attorney (included on the signature page herein). |
| † |
Erin Energy Corporation will file as an exhibit to a Current Report on Form 8-K (i) any underwriting, remarketing or agency agreement relating to securities offered hereby, (ii) the instruments setting forth
the terms of any debt securities, preferred stock or warrants, (iii) any additional required opinions of counsel with respect to legality of the securities offered hereby, (iv) any required opinion of counsel to Erin Energy Corporation as
to certain tax matters relative to securities offered hereby and (v) any required Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Senior Trustee and the Subordinated Trustee on Form T-1.
|
| * |
Incorporated by reference as indicated. |
Exhibit 4.6
ERIN ENERGY CORPORATION
as
Issuer
and
[
]
as Trustee
Indenture
Dated as of
[ , ]
Debt Securities
ERIN ENERGY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ,
]
|
|
|
|
|
|
|
|
|
| Section of
Trust Indenture
Act of 1939 |
|
|
|
Section(s) of
Indenture |
| |
§310 |
|
|
(a)(1) |
|
|
|
7.10 |
|
|
|
|
(a)(2) |
|
|
|
7.10 |
|
|
|
|
(a)(3) |
|
|
|
Not Applicable |
|
|
|
|
(a)(4) |
|
|
|
Not Applicable |
|
|
|
|
(a)(5) |
|
|
|
7.10 |
|
|
|
|
(b) |
|
|
|
7.08, 7.10 |
| |
§311 |
|
|
(a) |
|
|
|
7.11 |
|
|
|
|
(b) |
|
|
|
7.11 |
|
|
|
|
(c) |
|
|
|
Not Applicable |
| |
§312 |
|
|
(a) |
|
|
|
2.07 |
|
|
|
|
(b) |
|
|
|
10.03 |
|
|
|
|
(c) |
|
|
|
10.03 |
| |
§313 |
|
|
(a) |
|
|
|
7.06 |
|
|
|
|
(b) |
|
|
|
7.06 |
|
|
|
|
(c) |
|
|
|
7.06 |
|
|
|
|
(d) |
|
|
|
7.06 |
| |
§314 |
|
|
(a) |
|
|
|
4.03, 4.04 |
|
|
|
|
(b) |
|
|
|
Not Applicable |
|
|
|
|
(c)(1) |
|
|
|
10.04 |
|
|
|
|
(c)(2) |
|
|
|
10.04 |
|
|
|
|
(c)(3) |
|
|
|
Not Applicable |
|
|
|
|
(d) |
|
|
|
Not Applicable |
|
|
|
|
(e) |
|
|
|
10.05 |
| |
§315 |
|
|
(a) |
|
|
|
7.01(b) |
|
|
|
|
(b) |
|
|
|
7.05 |
|
|
|
|
(c) |
|
|
|
7.01(a) |
|
|
|
|
(d) |
|
|
|
7.01(c) |
|
|
|
|
(d)(1) |
|
|
|
7.01(c)(1) |
|
|
|
|
(d)(2) |
|
|
|
7.01(c)(2) |
|
|
|
|
(d)(3) |
|
|
|
7.01(c)(3) |
|
|
|
|
(e) |
|
|
|
6.11 |
| |
§316 |
|
|
(a)(1)(A) |
|
|
|
6.05 |
|
|
|
|
(a)(1)(B) |
|
|
|
6.04 |
|
|
|
|
(a)(2) |
|
|
|
Not Applicable |
|
|
|
|
(a)(last sentence) |
|
|
|
2.11 |
|
|
|
|
(b) |
|
|
|
6.07 |
| |
§317 |
|
|
(a)(1) |
|
|
|
6.08 |
|
|
|
|
(a)(2) |
|
|
|
6.09 |
|
|
|
|
(b) |
|
|
|
2.06 |
| |
§318 |
|
|
(a) |
|
|
|
10.01 |
| Note: |
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
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| |
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Page |
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| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
|
|
1 |
|
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|
|
| SECTION 1.01 |
|
Definitions |
|
|
1 |
|
| SECTION 1.02 |
|
Other Definitions |
|
|
5 |
|
| SECTION 1.03 |
|
Incorporation by Reference of Trust Indenture Act |
|
|
5 |
|
| SECTION 1.04 |
|
Rules of Construction |
|
|
6 |
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|
|
| ARTICLE II THE SECURITIES |
|
|
6 |
|
|
|
|
| SECTION 2.01 |
|
Amount Unlimited; Issuable in Series |
|
|
6 |
|
| SECTION 2.02 |
|
Denominations |
|
|
9 |
|
| SECTION 2.03 |
|
Forms Generally |
|
|
9 |
|
| SECTION 2.04 |
|
Execution, Authentication, Delivery and Dating |
|
|
10 |
|
| SECTION 2.05 |
|
Registrar and Paying Agent |
|
|
11 |
|
| SECTION 2.06 |
|
Paying Agent to Hold Money in Trust |
|
|
12 |
|
| SECTION 2.07 |
|
Holder Lists |
|
|
12 |
|
| SECTION 2.08 |
|
Transfer and Exchange |
|
|
13 |
|
| SECTION 2.09 |
|
Replacement Securities |
|
|
13 |
|
| SECTION 2.10 |
|
Outstanding Securities |
|
|
13 |
|
| SECTION 2.11 |
|
Original Issue Discount, Foreign-Currency Denominated and Treasury Securities |
|
|
14 |
|
| SECTION 2.12 |
|
Temporary Securities |
|
|
14 |
|
| SECTION 2.13 |
|
Cancellation |
|
|
14 |
|
| SECTION 2.14 |
|
Payments; Defaulted Interest |
|
|
15 |
|
| SECTION 2.15 |
|
Persons Deemed Owners |
|
|
15 |
|
| SECTION 2.16 |
|
Computation of Interest |
|
|
15 |
|
| SECTION 2.17 |
|
Global Securities; Book-Entry Provisions |
|
|
16 |
|
|
|
| ARTICLE III REDEMPTION |
|
|
18 |
|
|
|
|
| SECTION 3.01 |
|
Applicability of Article |
|
|
18 |
|
| SECTION 3.02 |
|
Notice to the Trustee |
|
|
18 |
|
| SECTION 3.03 |
|
Selection of Securities To Be Redeemed |
|
|
18 |
|
| SECTION 3.04 |
|
Notice of Redemption |
|
|
19 |
|
| SECTION 3.05 |
|
Effect of Notice of Redemption |
|
|
20 |
|
| SECTION 3.06 |
|
Deposit of Redemption Price |
|
|
20 |
|
| SECTION 3.07 |
|
Securities Redeemed in Part |
|
|
20 |
|
| SECTION 3.08 |
|
Purchase of Securities |
|
|
21 |
|
| SECTION 3.09 |
|
Mandatory and Optional Sinking Funds |
|
|
21 |
|
| SECTION 3.10 |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
21 |
|
| SECTION 3.11 |
|
Redemption of Securities for Sinking Fund |
|
|
21 |
|
|
|
| ARTICLE IV COVENANTS |
|
|
22 |
|
|
|
|
| SECTION 4.01 |
|
Payment of Securities |
|
|
22 |
|
i
|
|
|
|
|
|
|
| SECTION 4.02 |
|
Maintenance of Office or Agency |
|
|
22 |
|
| SECTION 4.03 |
|
SEC Reports; Financial Statements |
|
|
23 |
|
| SECTION 4.04 |
|
Compliance Certificate |
|
|
24 |
|
| SECTION 4.05 |
|
Corporate Existence |
|
|
24 |
|
| SECTION 4.06 |
|
Waiver of Stay, Extension or Usury Laws |
|
|
24 |
|
| SECTION 4.07 |
|
Additional Amounts |
|
|
24 |
|
|
|
| ARTICLE V SUCCESSORS |
|
|
25 |
|
|
|
|
| SECTION 5.01 |
|
Limitations on Mergers and Consolidations |
|
|
25 |
|
| SECTION 5.02 |
|
Successor Person Substituted |
|
|
26 |
|
|
|
| ARTICLE VI DEFAULTS AND REMEDIES |
|
|
26 |
|
|
|
|
| SECTION 6.01 |
|
Events of Default |
|
|
26 |
|
| SECTION 6.02 |
|
Acceleration |
|
|
28 |
|
| SECTION 6.03 |
|
Other Remedies |
|
|
28 |
|
| SECTION 6.04 |
|
Waiver of Defaults |
|
|
29 |
|
| SECTION 6.05 |
|
Control by Majority |
|
|
29 |
|
| SECTION 6.06 |
|
Limitations on Suits |
|
|
29 |
|
| SECTION 6.07 |
|
Rights of Holders to Receive Payment |
|
|
30 |
|
| SECTION 6.08 |
|
Collection Suit by Trustee |
|
|
30 |
|
| SECTION 6.09 |
|
Trustee May File Proofs of Claim |
|
|
30 |
|
| SECTION 6.10 |
|
Priorities |
|
|
31 |
|
| SECTION 6.11 |
|
Undertaking for Costs |
|
|
32 |
|
|
|
| ARTICLE VII TRUSTEE |
|
|
32 |
|
|
|
|
| SECTION 7.01 |
|
Duties of Trustee |
|
|
32 |
|
| SECTION 7.02 |
|
Rights of Trustee |
|
|
33 |
|
| SECTION 7.03 |
|
May Hold Securities |
|
|
34 |
|
| SECTION 7.04 |
|
Trustee’s Disclaimer |
|
|
34 |
|
| SECTION 7.05 |
|
Notice of Defaults |
|
|
34 |
|
| SECTION 7.06 |
|
Reports by Trustee to Holders |
|
|
34 |
|
| SECTION 7.07 |
|
Compensation and Indemnity |
|
|
34 |
|
| SECTION 7.08 |
|
Replacement of Trustee |
|
|
35 |
|
| SECTION 7.09 |
|
Successor Trustee by Merger, etc. |
|
|
37 |
|
| SECTION 7.10 |
|
Eligibility; Disqualification |
|
|
37 |
|
| SECTION 7.11 |
|
Preferential Collection of Claims Against the Company |
|
|
38 |
|
|
|
| ARTICLE VIII DISCHARGE OF INDENTURE |
|
|
38 |
|
|
|
|
| SECTION 8.01 |
|
Termination of the Company’s Obligations |
|
|
38 |
|
| SECTION 8.02 |
|
Application of Trust Money |
|
|
41 |
|
| SECTION 8.03 |
|
Repayment to Company |
|
|
42 |
|
| SECTION 8.04 |
|
Reinstatement |
|
|
42 |
|
|
|
| ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS |
|
|
42 |
|
|
|
|
| SECTION 9.01 |
|
Without Consent of Holders |
|
|
42 |
|
| SECTION 9.02 |
|
With Consent of Holders |
|
|
44 |
|
| SECTION 9.03 |
|
Compliance with Trust Indenture Act |
|
|
45 |
|
ii
|
|
|
|
|
|
|
| SECTION 9.04 |
|
Revocation and Effect of Consents |
|
|
46 |
|
| SECTION 9.05 |
|
Notation on or Exchange of Securities |
|
|
46 |
|
| SECTION 9.06 |
|
Trustee to Sign Amendments, etc. |
|
|
46 |
|
|
|
| ARTICLE X MISCELLANEOUS |
|
|
47 |
|
|
|
|
| SECTION 10.01 |
|
Trust Indenture Act Controls |
|
|
47 |
|
| SECTION 10.02 |
|
Notices |
|
|
47 |
|
| SECTION 10.03 |
|
Communication by Holders with Other Holders |
|
|
48 |
|
| SECTION 10.04 |
|
Certificate and Opinion as to Conditions Precedent |
|
|
48 |
|
| SECTION 10.05 |
|
Statements Required in Certificate or Opinion |
|
|
49 |
|
| SECTION 10.06 |
|
Rules by Trustee and Agents |
|
|
49 |
|
| SECTION 10.07 |
|
Legal Holidays |
|
|
49 |
|
| SECTION 10.08 |
|
No Recourse Against Others |
|
|
49 |
|
| SECTION 10.09 |
|
Governing Law |
|
|
49 |
|
| SECTION 10.10 |
|
No Adverse Interpretation of Other Agreements |
|
|
50 |
|
| SECTION 10.11 |
|
Successors |
|
|
50 |
|
| SECTION 10.12 |
|
Severability |
|
|
50 |
|
| SECTION 10.13 |
|
Counterpart Originals |
|
|
50 |
|
| SECTION 10.14 |
|
Table of Contents, Headings, etc. |
|
|
50 |
|
iii
INDENTURE dated as of [
, ] between Erin Energy Corporation, a Delaware corporation (the “Company”), and
[ ], a [ ],
as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s unsecured debentures, notes or other evidences of indebtedness (the “Securities”) to be issued from time to time in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
“Additional Amounts” means any additional amounts required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For 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, means 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.
“Agent” means any Registrar or Paying Agent.
“Bankruptcy Law” means Title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
“Board of Directors” means the Board of Directors or comparable governing body of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors or comparable governing body of the Company.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day that is not a Legal Holiday.
“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; provided, however, that for purposes of any provision contained herein which is required by the
TIA, “Company” shall also mean each other obligor (if any) on the Securities of a series.
1
“Company Order” and “Company Request” mean, respectively, a written order or
request signed in the name of the Company by two Officers of the Company, and delivered to the Trustee.
“Corporate Trust Office of
the Trustee” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which, in the case of
[ ], shall be
[ ].
“Default” means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
“deliver” or “delivery” means, in the context of certificated Securities, actual physical delivery of the
certificated Securities to the relevant Person required hereunder, together with all endorsements, and in the context of Global Securities, the designation on the records of the Depositary of a change in the beneficial interests of a holder in a
Global Security.
“Depositary” means, with respect to the Securities of any series issuable or issued in whole or in part in
global form, the Person specified pursuant to Section 2.01 hereof as the initial Depositary with respect to the Securities of such series, until a successor shall have been appointed and become such pursuant to the applicable provision of this
Indenture, and thereafter “Depositary” shall mean or include such successor.
“Dollar” or “$” means a dollar
or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute.
“GAAP” means generally accepted accounting principles in the United States 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, as in effect from time to time.
“Global Security” means a Security
that is issued in global form in the name of the Depositary with respect thereto or its nominee.
“Government Obligations”
means, with respect to a series of Securities, (i) direct obligations of a government that issues the currency in which the Securities of the series are payable for the payment of which the full faith and credit of such government is pledged,
or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in
either case under clause (i) or (ii) above, are not callable or redeemable at the option of the issuer thereof; or (iii) depository receipts issued by a bank or trust company as custodian with respect to any such Government
Obligations or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required
2
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
Government Obligation evidenced by such depository receipt.
“Holder” means a Person in whose name a Security is registered.
“Indenture” means this Indenture as amended or supplemented from time to time pursuant to the provisions hereof, and includes
the terms of a particular series of Securities established as contemplated by Section 2.01.
“interest” means, with respect
to an Original Issue Discount Security that by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date,” when used with respect to any Security, shall have the meaning assigned to such term in the Security as
contemplated by Section 2.01.
“Issue Date” means, with respect to Securities of a series, the first date on which the
Securities of such series are originally issued under this Indenture.
“Legal Holiday” means a Saturday, a Sunday or a day on
which banking institutions in any of The City of New York, New York; Houston, Texas or a Place of Payment are authorized or obligated by law, regulation or executive order to remain closed.
“Maturity” means, with respect to any Security, 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 thereof, or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
“Officers’ Certificate” means a certificate signed by two Officers of a Person.
“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company or the Trustee.
“Original Issue Discount Security” means any Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or government or other agency, instrumentality or political subdivision thereof or other entity of any kind.
3
“Place of Payment” means, with respect to the Securities of any series, the place or
places where the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of that series are payable as specified in accordance with Section 2.01 subject to the provisions of Section 4.02.
“principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on the Security.
“Redemption Date” means, with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption Price” means, with respect to any Security to be redeemed, the price at which it is to be redeemed
pursuant to this Indenture.
“Responsible Officer” means any officer within the corporate trust department of the Trustee having
direct responsibility for the administration of this Indenture or any other officer to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Rule 144A Securities” means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
“SEC” means the Securities and Exchange
Commission.
“Securities” has the meaning stated in the preamble of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
“Security Custodian” means, with respect to Securities of a series issued in
global form, the Trustee for Securities of such series, as custodian with respect to the Securities of such series, or any successor entity thereto.
“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 as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a Person at least a majority of the outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock having voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of any contingency.
“surrender” shall have the same
meaning as “deliver” in the context of the surrender of a Security.
“TIA” means the Trust Indenture Act of 1939, as
amended, as in effect on the date hereof; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.
4
“Trustee” means the Person named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter “Trustee” means 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 means the Trustee with respect to Securities of that series.
“United States” means the United States
of America (including the States and the District of Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
“U.S. Government Obligations” means Government Obligations with respect to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
|
|
|
|
|
| Term |
|
Defined
in Section |
|
| “Agent Members” |
|
|
2.17 |
|
| “Bankruptcy Custodian” |
|
|
6.01 |
|
| “Conversion Event” |
|
|
6.01 |
|
| “covenant defeasance” |
|
|
8.01 |
|
| “Event of Default” |
|
|
6.01 |
|
| “Exchange Rate” |
|
|
2.11 |
|
| “Judgment Currency” |
|
|
6.10 |
|
| “legal defeasance” |
|
|
8.01 |
|
| “mandatory sinking fund payment” |
|
|
3.09 |
|
| “optional sinking fund payment” |
|
|
3.09 |
|
| “Paying Agent” |
|
|
2.05 |
|
| “Payment Blocking Notice” |
|
|
10.02 |
|
| “Payment Default” |
|
|
10.02 |
|
| “Registrar” |
|
|
2.05 |
|
| “Required Currency” |
|
|
6.10 |
|
| “Successor” |
|
|
5.01 |
|
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture (and
if the Indenture is not qualified under the TIA at the time, as if it were so qualified unless otherwise provided). The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
5
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company or any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
| |
(1) |
a term has the meaning assigned to it; |
| |
(2) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
| |
(3) |
“or” is not exclusive; |
| |
(4) |
words in the singular include the plural, and in the plural include the singular; |
| |
(5) |
provisions apply to successive events and transactions; and |
| |
(6) |
all references in this instrument to Articles and Sections are references to the corresponding Articles and Sections in and of this instrument. |
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth, or
determined in the manner provided, in an Officers’ Certificate of the Company or in a Company Order, 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 the Securities of all
other series);
6
(2) if there is to be a limit, the limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 and except for any Securities that, pursuant to Section 2.04 or 2.17, are deemed never to have been authenticated and delivered hereunder); provided, however, that unless otherwise
provided in the terms of the series, the authorized aggregate principal amount of such series may be increased before or after the issuance of any Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to such
effect;
(3) whether any Securities of the series are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.17, and the initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) the manner in which any interest payable on a temporary Global Security on any
Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on
which the principal of and premium (if any) on the Securities of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the record
date for the interest payable on any Securities on any Interest Payment Date, or if other than provided herein, the Person to whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02, the principal of, premium (if any) and interest
on and any Additional Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods
within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is
to have that option, and the manner in which the Company must exercise any such option, if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund
or analogous provisions or at the
7
option of a Holder thereof and the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such obligation;
(10) if
other than denominations of $1,000 and any integral multiple thereof, the denomination in which any Securities of that series shall be issuable;
(11) if other than Dollars, the currency or currencies (including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or any other securities or property of the Company or any other Person, in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect
to the Securities of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to
be payable, the currency or currencies (including composite currencies) in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(13)
if the amount of payments of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series may be determined with reference to any commodities, currencies or indices, values, rates or prices
or any other index or formula, the manner in which such amounts shall be determined;
(14) if other than the entire
principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(15) any additional means of satisfaction and discharge of this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article VIII or any modifications of or deletions from such conditions or limitations;
(16) any deletions or modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the
Company set forth in Article IV pertaining to the Securities of the series;
(17) any restrictions or other provisions with
respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities
8
or any other securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition or event, the terms and conditions for
such conversion or exchange;
(19) whether the Securities of the series are to be entitled to the benefit of
Section 4.03(b) (and accordingly constitute Rule 144A Securities); and
(20) any other terms of the series (which
terms shall not be prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers’ Certificate or
Company Order referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such action, together with such Board Resolution, shall be set forth in an Officers’ Certificate or 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 or Company Order setting forth the terms of the series.
SECTION
2.02 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by
Section 2.01. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The
Securities of each series shall be in fully registered form and in substantially such form or forms (including temporary or permanent global form) established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto. The
Securities may have notations, legends or endorsements required by law, securities exchange rule, the Company’s certificate of incorporation, bylaws or other similar governing documents, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). A copy of the Board Resolution establishing the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
The definitive
Securities of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution thereof.
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The Trustee’s certificate of authentication shall be in substantially the following form:
“This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Authorized Officer”. |
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature. If an Officer of the Company
whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any Security has been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company delivers such Security to the Trustee for cancellation as provided in Section 2.13, together with a written statement (which need not comply with Section 10.05
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.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for original issue upon a Company Order for the authentication and
delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such order shall specify the amount of the Securities to be authenticated, the date on which the original
issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the Securities of such series not otherwise determined. If provided for in such procedures, such Company Order may authorize
(1) authentication and delivery of Securities of such series for original issue from time to time, with certain terms (including, without limitation, the Maturity dates or dates, original issue date or dates and interest rate or rates) that
differ from Security to Security and (2) may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to
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above and the other documents required by Section 10.04), and (subject to Section 7.01) shall be fully protected in relying upon:
(a) an Officers’ Certificate setting forth the Board Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
(b) an Opinion of Counsel to the
effect that:
(i) the form of such Securities has been established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other similar laws in effect from time to time affecting the rights of creditors generally, and the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or before the time
of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of Securities where Securities of such series may be presented for registration
of transfer or exchange (“Registrar”) and an office or agency where Securities of such series may be presented for
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payment (“Paying Agent”). The Registrar shall keep a register of the Securities of such series and of their transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar without notice
to any Holder. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional Amounts with respect to Securities and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Each Paying Agent shall otherwise comply with TIA § 317(b).
SECTION 2.07 Holder Lists.
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 Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar with respect to a
series of Securities, the Company shall furnish to the Trustee at least five Business Days before each Interest Payment Date with respect to such series of Securities, and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
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SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01:
When Securities of any series are presented to the Registrar with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements and the requirements of
this Indenture for such transactions are met; provided, however, that the Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form
reasonably satisfactory to the Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the
Registrar’s written request and submission of the Securities or Global Securities. No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.12, 3.07 or
9.05). The Trustee shall authenticate Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the contrary, the Company shall not be required to register the transfer or exchange
of (a) any Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed portion of any Security being redeemed in part, or (b) any Security during the period beginning 15 Business Days prior to the
mailing of notice of any offer to repurchase Securities of the series required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of business on the day of mailing.
SECTION 2.09 Replacement Securities.
If
any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims that the Security has been destroyed, lost or stolen and the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft
of such Security, the Company shall issue and the Trustee shall authenticate a replacement Security of the same series if the Trustee’s requirements are met. If any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. If required by the Trustee or the Company, such Holder must furnish an indemnity bond that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any authenticating agent from any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge a Holder for their expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.10 Outstanding Securities.
The
Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee hereunder
and those described in this Section 2.10 as not outstanding.
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If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the principal amount of any
Security is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
A Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency
Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have concurred
in any direction, amendment, supplement, waiver or consent, (a) the principal amount of an Original Issue Discount Security shall be the principal amount thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the Dollar equivalent, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency, as such rate is certified for customs purposes by the Federal Reserve Bank of New York (the “Exchange Rate”) on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of original issuance of such Security, of the amount determined as provided in
(a) above), of such Security and (c) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded, except that, for the purpose of determining
whether the Trustee shall be protected in relying upon any such direction, amendment, supplement, waiver or consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until
definitive Securities of any series are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to
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them for registration of transfer, exchange, payment or redemption or for credit against any sinking fund payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, redemption, replacement or cancellation or for credit against any sinking fund. Unless the Company shall direct in writing that canceled Securities be returned to it, all canceled Securities held by the Trustee shall be
disposed of in accordance with the usual disposal procedures of the Trustee, and the Trustee shall maintain a record of their disposal. The Company may not issue new Securities to replace Securities that have been paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at the close of business on the record date next preceding such Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The Holder must surrender a Security to a Paying Agent to collect principal payments. Unless otherwise provided with respect to the Securities of any series,
the Company will pay the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities in Dollars. Such amounts shall be payable at the offices of the Trustee or any Paying Agent, provided that at
the option of the Company, the Company may pay such amounts (1) by wire transfer with respect to Global Securities or (2) by check payable in such money mailed to a Holder’s registered address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of any series, the Company shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each case at the rate provided in the Securities of such series and in Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20 days’ prior written notice from the Company setting
forth such special record date and the interest amount to be paid) shall mail to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The
Company, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payments of principal of, premium (if any) or interest on or any
Additional Amounts with respect to such Security and for all other purposes. None of the Company, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a year comprising twelve 30-day months.
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SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global Security shall represent such of the outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security 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 in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other written form of
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 2.04 and, if applicable,
Section 2.12, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to the
Securities of any series that are represented by a Global 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 Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may 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 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 10.05 and need not be accompanied by an Opinion of Counsel.
Members of, or
participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under
such Global Security, and the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to
take any action that a Holder of Securities of such series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian, or any agent of the
Company, the Trustee or the Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial owner of any Security.
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Notwithstanding Section 2.08, and except as otherwise provided pursuant to
Section 2.01: Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Security
may be transferred in accordance with the rules and procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Security if, and only if, either (1) the
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Security and a successor Depositary is not appointed by the Company within 90 days of such notice, (2) an Event of Default has occurred with
respect to such series and is continuing and the Registrar has received a request from the Depositary to issue Securities in lieu of all or a portion of the Global Security (in which case the Company shall deliver Securities within 30 days of such
request) or (3) the Company determines not to have the Securities represented by a Global Security.
In connection with any transfer
of a portion of the beneficial interests in a Global Security to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interests in the Global Security to be transferred, and the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication and delivery of 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 interests in a Global Security to beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interests in the Global Security, an equal aggregate principal amount of Securities of authorized denominations.
Neither the Company nor the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on
account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related Global Security Holder
or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from such Global Security Holder or the Depositary for all purposes (including with respect to
the registration and delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence
of the third paragraph of Section 2.04 shall apply to any Global Security if such Global Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with written instructions (which
need not comply with Section 10.05 and need not be accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by
the last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless
otherwise specified as contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to any Global Security shall be made to the Depositary.
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The Company in issuing Securities of any series 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 of Securities of such series; provided that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
Notwithstanding anything herein to the contrary, delivery or surrender of a Security shall not be required in the case of Global Securities in
order to obtain the rights or benefits provided hereunder upon the delivery or surrender of a Security.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of
Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article III.
SECTION 3.02
Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall notify the
Trustee of the Redemption Date and the principal amount of Securities of such series to be redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
by delivering to the Trustee an Officers’ Certificate stating that such redemption will comply with the provisions of this Indenture and of the Securities of such series. Any such notice may be canceled at any time prior to the mailing of such
notice of such redemption to any Holder and shall thereupon be void and of no effect.
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities of such series (and tenor) not previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall deem appropriate in accordance with industry standards at the time of such redemption and that may provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of
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that series or of the principal amount of Global Securities of such series; provided that, if at the time of redemption such Securities are registered as a Global Security, the Depositary
shall determine, in accordance with its procedures, the principal amount of such Securities held by each beneficial owner of Securities to be redeemed.
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the
context otherwise requires, all provisions relating to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be redeemed only in part, to the portion of the principal amount thereof which has been or is to be
redeemed.
SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 days (or not less than 15 days in the case of
convertible Securities) nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price (or the method of calculating or determining the Redemption Price);
(3) that, unless the Company defaults in making the redemption payment, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the principal amount thereof to be redeemed and that on and after
the Redemption Date, upon surrender for cancellation of such Security to the Paying Agent, a new Security or Securities in the aggregate principal amount equal to the unredeemed portion thereof will be issued without charge to the Holder;
(5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price and the name
and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the case;
(7) if such Securities are convertible into or exchangeable for capital stock, other debt securities (including Securities),
warrants, other equity securities or any other securities or property of the Company or any other Person, the name and address of the conversion or exchange agent, the date on which the right to convert or exchange is terminated and the conversion
or exchange rate; and
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(8) the CUSIP number, if any, relating to such Securities.
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
written request, by the Trustee in the name and at the expense of the Company.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption shall be paid at the Redemption Price, but interest installments whose maturity is on or prior to such Redemption Date will be payable on the relevant Interest Payment
Dates to the Holders of record at the close of business on the relevant record dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of
Redemption Price.
By 11:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or the Paying
Agent (or, if the Company is acting as the Paying Agent, segregate and hold in trust as provided in Section 2.06) an amount of money in same day funds sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on and any Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, interest on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Securities are presented for payment, and the Holders of such
Securities shall have no further rights with respect to such Securities except for the right to receive the Redemption Price upon surrender of such Securities. If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, any Additional Amounts, and, to the extent lawful, accrued interest thereon shall, until paid, bear interest from the Redemption Date at the rate specified pursuant to Section 2.01 or provided in the
Securities or, in the case of Original Issue Discount Securities, such Securities’ yield to maturity.
SECTION 3.07 Securities Redeemed in
Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a new Security or Securities, of the same series and 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 that is not redeemed.
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SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities in the open market or by private agreement. Any such acquisition shall not operate as or be deemed for any purpose to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall apply to all Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company may deliver outstanding Securities of a series (other than any previously called for redemption) and may apply as a credit
Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such series of Securities; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate of the Company specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and will also deliver or cause to be delivered to the Trustee any
Securities to be so delivered. Failure of the Company to timely deliver or cause to be delivered such Officers’ Certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute the election of
the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section.
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If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the
next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable Exchange Rate on the date of original issue of the
applicable Securities) or a lesser sum if the Company shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof as aforesaid) or less and the Company makes no such request then it shall
be carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of
Securities.
The Company shall pay the principal of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of each series on the dates and in the manner provided in the Securities of such series and in this Indenture. Principal, premium, interest and any Additional Amounts shall be considered paid on the date due if the Paying Agent (other
than the Company or a Subsidiary) holds by 11:00 a.m., New York City time, on that date money deposited by the Company designated for and sufficient to pay all principal, premium, interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium
(if any), at a rate equal to the then applicable interest rate on the Securities to the extent lawful; and it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and any Additional Amount (without regard to any applicable grace period) at the same rate to the extent lawful.
SECTION
4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities of that series may be presented for registration of transfer or exchange, where Securities of that series may be presented for payment and where
notices and demands to or upon
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the Company in respect of the Securities of that series and this Indenture may be served. Unless otherwise designated by the Company by written notice to the Trustee, such office or agency shall
be the office of the Trustee in The City of New York, which on the date hereof is located at [
], New York, New York
[ ]. The
Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 4.03 SEC Reports; Financial Statements.
(a) If the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company shall file with the Trustee, within 15 days after it
files the same with the SEC, copies of the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If this Indenture is qualified under the TIA, but not otherwise, the Company shall also comply with the provisions of TIA § 314(a).
(b) If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Company shall furnish to all
Holders of Rule 144A Securities and prospective purchasers of Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under
the Securities Act of 1933, as amended.
(c) The Company intends to file the reports, information and documents referred to in
Section 4.03(a) hereof with the SEC in electronic form pursuant to Regulation S-T promulgated by the SEC using the SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system. The Company shall notify the Trustee in
the manner prescribed herein of each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Company of
such reports to the Trustee in compliance with the provisions of TIA § 314(a). The Trustee shall have no duty to search for or obtain any electronic or other filings that the Company makes with the SEC, regardless of whether such filings are
periodic, supplemental or otherwise. Delivery of the reports, information and documents to the Trustee pursuant to this Section 4.03 shall be solely for the purposes of compliance with this Section 4.03 and with TIA § 314(a). The
Trustee’s receipt of such reports, information and documents shall not constitute notice to it of the content thereof or of any matter determinable from the content thereof, including the Company’s compliance with any of its covenants
hereunder, as to which the Trustee is entitled to rely upon Officers’ Certificates.
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SECTION 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a statement signed by the
principal executive officer, principal financial officer or principal accounting officer of the Company, which need not constitute an Officers’ Certificate, complying with TIA § 314(a)(4) and stating that in the course of performance by
the signing Officer of his duties as such Officer of the Company he would normally obtain knowledge of the keeping, observing, performing and fulfilling by the Company of its obligations under this Indenture, and further stating that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may have knowledge and what action the Company is taking or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any series are outstanding, deliver to the Trustee, as soon as practicable, but in no event
more than five Business Days, after any Officer of the Company becoming aware of any Default or Event of Default under this Indenture, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its
existence.
SECTION 4.06 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive it from paying all or any portion of the principal of or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 4.07 Additional Amounts.
If the
Securities of a series expressly provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series Additional Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in respect of, any
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Security of any series or the net proceeds received from the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section 4.07 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 4.07 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.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
The Company shall not consolidate with or merge into any Person, or sell, lease, convey, assign, transfer or otherwise dispose of, in any
transaction or series of transactions, all or substantially all of its assets to any Person, unless:
(1) either
(a) the Company shall be the continuing Person or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged, or to which such sale, lease, conveyance, assignment, transfer or other
disposition shall be made (collectively, the “Successor”), is organized or existing under the laws of the United States of America, any State thereof or the District of Columbia, Australia, the Bahamas, Barbados, Bermuda, the British
Virgin Islands, the Cayman Islands, any of the Channel Islands, any member of the European Union (as constituted on the date hereof) or any other member of the European Union that becomes a member after the date hereof, Switzerland, the Netherlands
Antilles or any state, province or political subdivision of the foregoing, and expressly assumes by supplemental indenture the due and punctual payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to
all the Securities and the performance of the Company’s covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom;
(3) in the case of clause (1)(b) above, in the event that the
Successor is organized in a jurisdiction (other than the United States of America, any political subdivision thereof or any State thereof or the District of Columbia) which is different from the jurisdiction in which the obligor on the Securities
was organized immediately before giving effect to the transaction or series of transactions, (a) the Successor delivers to the Trustee an Opinion of Counsel stating that the obligations of the Successor are enforceable under the laws of the new
jurisdiction of its formation subject to customary exceptions; and (b) the Successor agrees in writing to submit to jurisdiction to the competent courts of the State of New York or the federal district court sitting in The City of New York and
appoints an agent in the State of New York for the service of process, each under terms satisfactory to the Trustee; and
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(4) in the case of clause (1)(b) above, the Successor delivers to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale, lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, the Successor formed by such consolidation or into which the Company is merged or to which such sale, lease, conveyance, assignment, transfer or other disposition is made shall succeed
to, and be substituted for, and may exercise every right and power of the Company under this Indenture and the Securities with the same effect as if such Successor had been named as the Company herein, and the predecessor Company, in the case of a
sale, conveyance, assignment, transfer or other disposition, shall be released from all obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or specifically deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for such series, an “Event of Default,” wherever used herein with respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional Amounts with respect to any Security of that series
when the same becomes due and payable and such default continues for a period of 30 days;
(2) the Company defaults in the
payment of (A) the principal of any Security of that series at its Maturity or (B) premium (if any) on any Security of that series when the same becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series,
and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other than an agreement, covenant or provision that has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than
that series) which shall not have been remedied within the specified period after written notice, as specified in the last paragraph of this Section 6.01;
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(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy Custodian of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or a Bankruptcy Custodian for all or substantially all of the property of
the Company, or
(C) orders the liquidation of the Company; or
(7) any other Event of Default provided with respect to Securities of that series occurs.
The term “Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
When a Default or Event of Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium (if any) or interest on or Additional Amounts
with respect to any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency or currencies are not available to the Company for making payment thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company (a “Conversion Event”), the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in Dollars in an amount equal to the
Dollar equivalent of the amount payable in such other currency, as determined by the Company by reference to the Exchange Rate on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made under such circumstances in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this
Indenture.
Promptly after the occurrence of a Conversion Event, the Company shall give written notice thereof to the Trustee; and the
Trustee, promptly after receipt of such notice, shall give notice thereof in the manner provided in Section 10.02 to the Holders. Promptly after the making of any payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 10.02 to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such payments.
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A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of the series affected by such Default (or, in the case of a Default under clause (4) of this Section 6.01, if
outstanding Securities of other series are affected by such Default, then at least 25% in principal amount of the then outstanding Securities so affected) notify the Company and the Trustee, of the Default, and the Company fails to cure the Default
within 90 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.”
SECTION 6.02 Acceleration.
If an Event
of Default with respect to any Securities of any series at the time outstanding (other than an Event of Default specified in clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding Securities of the series affected by such Event of Default (or, in the case of an Event of Default described in clause (4) of Section 6.01, if outstanding Securities of
other series are affected by such Event of Default, then at least 25% in principal amount of the then outstanding Securities so affected) by notice to the Company and the Trustee, may declare the principal of (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) and all accrued and unpaid interest on all then outstanding Securities of such series or of all series, as the case may be, to be due
and payable. Upon any such declaration, the amounts due and payable on the Securities shall be due and payable immediately. If an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs, such amounts shall
ipso facto become and be immediately due and payable without any declaration, notice or other act on the part of the Trustee or any Holder. The Holders of a majority in principal amount of the then outstanding Securities of the series
affected by such Event of Default or all series so affected, as the case may be, by written notice to the Trustee may rescind an acceleration and its consequences (other than nonpayment of principal of or premium or interest on or any Additional
Amounts with respect to the Securities) if (i) the rescission would not conflict with any judgment or decree, (ii) all existing Events of Default with respect to Securities of that series (or of all series, as the case may be) have been
cured or waived, except nonpayment of principal, premium, interest or any Additional Amounts that has become due solely because of the acceleration, and (iii) the Trustee has been paid any amounts due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.03
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, or premium, if any, or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to
the extent permitted by law.
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SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then outstanding Securities of any series or of all
series affected thereby (acting as one class) by notice to the Trustee may waive an existing or past Default or Event of Default with respect to such series or all series so affected, as the case may be, and its consequences (including waivers
obtained in connection with a tender offer or exchange offer for Securities of such series or all series so affected or a solicitation of consents in respect of Securities of such series or all series so affected, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities of such series or all series so affected (but the terms of such offer or solicitation may vary from series to series)), except (1) a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on or any Additional Amounts with respect to any Security or (2) a continued Default in respect of a provision that under Section 9.02 cannot be amended or
supplemented without the consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a majority in principal amount of the then outstanding Securities of such series may
direct in writing the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it relating to or arising under an Event of Default described in clause (1), (2),
(3) or (7) of Section 6.01, and with respect to all Securities, the Holders of a majority in principal amount of all the then outstanding Securities affected may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it not relating to or arising under such an Event of Default. However, the Trustee may refuse to follow any direction that conflicts with applicable law
or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion from Holders directing the Trustee against all losses and expenses
caused by taking or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with respect to this Indenture or the Securities
of such series only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default with respect
to such series;
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(2) the Holders of at least 25% in principal amount of the then outstanding
Securities of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to
the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply
with the request within 60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day
period, the Holders of a majority in principal amount of the Securities of such series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal of and premium, if
any, and interest on and any Additional Amounts with respect to the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express trust against the Company for the amount of principal, premium (if any), interest and any Additional Amounts remaining unpaid on the Securities of the series affected by the Event of
Default, and interest on overdue principal and premium, if any, and, to the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings relative to the Company or its creditors or properties and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such
claims and any Bankruptcy Custodian 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 to it
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for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties which the Holders of the Securities may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee
collects any money pursuant to this Article VI, it shall pay out the money in the following order:
First: to the Trustee
for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in respect of
which or for the benefit of which such money has been collected, for principal, premium (if any), interest and any Additional Amounts ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities
for principal, premium (if any), interest and any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix record dates and payment dates for any payment to Holders pursuant to this
Article VI.
To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment against the Company in any
court it is necessary to convert the sum due in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities of any series (the “Required Currency”) into a currency in which a judgment
will be rendered (the “Judgment Currency”), the rate of exchange used for purposes of rendering the judgment 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 6.10 caused by a change in exchange rates between the time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section 6.10 to Holders of Securities, but payment of such judgment shall discharge all amounts owed by the Company on the claim or claims underlying such judgment.
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SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series:
(1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such certificates and opinions to determine whether, on
their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does
not limit the effect of Section 7.01(b);
(2) 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
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
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(d) Whether or not therein expressly so provided, every provision of this Indenture that in any
way relates to the Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of, premium
(if any) and interest on and Additional Amounts with respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers’ Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such instruction, Officers’ Certificate or
Opinion of Counsel. The Trustee may consult at the Company’s expense with counsel of its selection and the 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.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect
to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by
any Holder of the Securities, and such notice references the Securities and this Indenture.
(g) The permissive rights of the Trustee
enumerated herein shall not be construed as duties.
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SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee’s Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision hereof, it shall not be responsible for the use or application of any money received by any Paying Agent
other than the Trustee and it shall not be responsible for any statement or recital herein or any statement in the Securities other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a
Default or Event of Default with respect to the Securities of any series occurs and is continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such series a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts or any sinking fund installment with respect to the Securities of such series, the Trustee
may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of Securities of such series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 of each year after the execution of this Indenture, the Trustee shall mail to Holders of a series and the
Company a brief report dated as of such reporting date that complies with TIA § 313(a); provided, however, that if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date with
respect to a series, no report need be transmitted to Holders of such series. The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders of a series of Securities shall be filed by the Company with the SEC
and each securities exchange, if any, on which the Securities of such series are listed. The Company shall notify the Trustee if and when any series of Securities is listed on any securities exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company and the
Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
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The Company hereby indemnifies the Trustee and any predecessor Trustee against any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred by it arising out of or in connection with the acceptance or administration of its duties under this
Indenture, except as set forth in the next following paragraph. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the
Trustee’s negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.07, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of any series. Such
lien and the Company’s obligations under this Section 7.07 shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(5) or (6) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be
discharged at any time with respect to the Securities of one or more series by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company 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). Within one year after the successor Trustee with respect to
the Securities of any series takes office, the Holders of a majority in principal amount of the Securities of such series then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does not take office within 30 days after the retiring or removed Trustee
resigns or is removed, the retiring or removed Trustee (at the expense of the Company), the Company or the Holders of at least 10% in principal amount of the then outstanding Securities of such series may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities
of a series fails to comply with Section 7.10, any Holder of Securities of such series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such series.
In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
In case of the appointment 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 (but not all) series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers 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 confirm that all the rights, powers 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. Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and 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. 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 shall have all the rights, powers and duties of the retiring
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Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. On request of the Company or any successor Trustee, such retiring
Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Such retiring Trustee shall,
however, have the right to deduct its unpaid fees and expenses, including attorneys’ fees.
Notwithstanding replacement of the
Trustee or Trustees pursuant to this Section 7.08, the obligations of the Company under Section 7.07 shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, however, that in the case of a transfer of all or substantially all of its corporate trust business to
another corporation, the transferee corporation expressly assumes all of the Trustee’s liabilities hereunder.
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; and in
case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation or banking association organized and doing business under the laws
of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and
shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2) and 310(a)(5). The
Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in
the penultimate paragraph of TIA § 310(b).
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SECTION 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to and shall comply with the provisions of TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF
INDENTURE
SECTION 8.01 Termination of the Company’s Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a series (except that the Company’s obligations
under Section 7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series theretofore authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding
Securities of such series 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, in the case of clause (i), (ii) or (iii) above, the Company has irrevocably deposited or caused to be deposited with the Trustee
as funds (immediately available to the Holders in the case of clause (i)) in trust for such purpose (x) money in the currency in which payment of the Securities of such series is to be made in an amount, or (y) Government Obligations with
respect to such series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such series is to be made in an amount or (z) a
combination thereof, which will be sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally recognized firm of independent public accountants expressed in a
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written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Securities of such series for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or for principal, premium, if any, and interest to the Stated Maturity or Redemption Date, as the case may be; or
(C) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all
other sums payable by it hereunder with respect to the Securities of such series; and
(3) the Company has delivered to the
Trustee an Officers’ Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, together with an Opinion of Counsel to the same
effect.
(b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series as contemplated by
Section 2.01, the Company may, at its option, terminate certain of its obligations under this Indenture (“covenant defeasance”) with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of Securities of such series, (i) money in the currency in which payment of the Securities of such series is
to be made in an amount, or (ii) Government Obligations with respect to such series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated
Maturity thereof or upon redemption as provided in Section 8.01(e)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such
Government Obligations to the payment of said principal, premium (if any) and interest with respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers’ Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, and an Opinion of Counsel to the same effect;
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(3) no 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;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a private letter ruling issued by the United States Internal Revenue Service to the effect that the Holders will not recognize income, gain or loss for United
States Federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.01(b) and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised;
(5) the Company has complied with any additional
conditions specified pursuant to Section 2.01 to be applicable to the discharge of Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a conflicting interest as defined in TIA § 310(b).
In such event, this Indenture shall cease to be of further effect (except as set forth in this paragraph), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture. However, the Company’s obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08 and 8.04, the Trustee’s and Paying
Agent’s obligations in Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Securities of such series are no longer outstanding. Thereafter, only the Company’s
obligations in Section 7.07 and the Trustee’s and Paying Agent’s obligations in Section 8.03 shall survive with respect to Securities of such series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the other conditions set forth herein, the
Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under this Indenture with respect to the Securities of such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the issuer’s option.
(c) If the Company has previously complied or is concurrently complying with Section 8.01(b) (other than any additional conditions
specified pursuant to Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities of a series, then, unless this Section 8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect that its obligations to make payments with respect to Securities of such series be discharged (“legal defeasance”), if:
(1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof shall have occurred at any
time during the period ending on the 91st day after the date of deposit contemplated by Section 8.01(b) (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
40
(2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.01(b)(4) with respect to such legal
defeasance, which opinion is based on (i) a private letter ruling issued by the United States Internal Revenue Service addressed to the Company, (ii) a published ruling of the United States Internal Revenue Service pertaining to a
comparable form of transaction or (iii) a change in the applicable United States Federal income tax law (including regulations) after the date of this Indenture;
(3) the Company has complied with any other conditions specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the
Trustee a Company Request requesting such legal defeasance of the Securities of such series and an Officers’ Certificate stating that all conditions precedent with respect to such legal defeasance of the Securities of such series have been
complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company will be discharged from its obligations
under this Indenture and the Securities of such series to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series, the Company’s obligations under Sections 4.01 and 4.02 shall
terminate with respect to such Securities, and the entire indebtedness of the Company evidenced by such Securities shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Company may terminate any or all of its obligations under this Indenture with respect to Securities of a series and any or all of its obligations under the Securities of such
series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.01, to be applicable to the Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section 8.01 are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of the applicable trust arrangement shall provide for such redemption, and the Company
shall make such arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the money from Government Obligations through the
41
Paying Agent and in accordance with this Indenture to the payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series with
respect to which the deposit was made.
SECTION 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company any excess money or Government Obligations (or proceeds therefrom) held by
them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the
Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the
Trustee and the Paying Agent with respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations deposited with respect to Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under
this Indenture with respect to the Securities of such series and under the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent
is permitted to apply all such money or Government Obligations in accordance with Section 8.01; provided, however, that if the Company has made any payment of principal of, premium (if any) or interest on or any Additional Amounts
with respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or
the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION
9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities or waive any
provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01;
42
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any
security for, or to add any guarantees of or additional obligors on, any series of Securities;
(5) to comply with any
requirement in order to effect or maintain the qualification of this Indenture under the TIA;
(6) 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), or to surrender any right or power herein conferred upon the Company;
(7) to add any additional Events of
Default with respect to all or any series of the Securities (and, if any such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become
effective only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that is adversely affected in any material respect by such change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to Section 8.01; provided, however, that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities
in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and upon receipt
by the Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained.
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SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture with the consent
(including consents obtained in connection with a tender offer or exchange offer for Securities of any one or more series or all series or a solicitation of consents in respect of Securities of any one or more series or all series, provided
that in each case such offer or solicitation is made to all Holders of then outstanding Securities of each such series (but the terms of such offer or solicitation may vary from series to series)) of the Holders of at least a majority in principal
amount of the then outstanding Securities of all series affected by such amendment or supplement (acting as one class).
Upon the request
of the Company, accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06, the Trustee shall,
subject to Section 9.06, join with the Company in the execution of such amendment or supplemental indenture.
It shall not be
necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding Securities of one or more series or of all series (acting as one class)
may waive compliance in a particular instance by the Company with any provision of this Indenture with respect to Securities of such series (including waivers obtained in connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series, provided that in each case such offer or solicitation is made to all Holders of then outstanding Securities of such series (but the terms of such offer or solicitation may
vary from series to series)).
However, without the consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of interest, including default interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory sinking fund payment with respect to, or change the Stated
Maturity of, any Security or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of any Security or change the time at which any Security may or
shall be redeemed;
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(5) change any obligation of the Company to pay Additional Amounts with respect
to any Security;
(6) change the coin or currency or currencies (including composite currencies) in which any Security or
any premium, interest or Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for
the enforcement of any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Security pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of Securities necessary to waive compliance with certain provisions
of this Indenture pursuant to Section 6.04 or 6.07 or make any change in this sentence of Section 9.02;
(9)
waive a continuing Default or Event of Default in the payment of principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities; or
(10) if applicable, make any change that materially and adversely affects the right to convert any Security.
A supplemental indenture that 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.
The right of any Holder to participate in any consent required or sought pursuant to
any provision of this Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect
to which such consent is required or sought as of a date identified by the Company in a notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of each
Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall comply in form and substance with the TIA as then in effect.
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SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his or her Security or portion of a Security if the Trustee receives written notice of revocation before a date and time therefor identified by the Company in a notice furnished to such Holder in accordance with the terms of this
Indenture or, if no such date and time shall be identified, the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date (which need not comply with TIA § 316(c)) for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver or to take any other action under this Indenture. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of Securities required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holder’s Security.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an outstanding Security, the Company may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security at the request of the Company regarding the changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the execution of any amendment or supplement 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 amendment or supplement.
SECTION 9.06 Trustee to Sign
Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant to this Article if the amendment or supplement
does not adversely affect the rights, duties, liabilities or
46
immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment or supplement, the Trustee shall be entitled to receive, in addition
to the documents required by Section 10.04, and, subject to Section 7.01 hereof, shall be fully protected in relying upon, an Opinion of Counsel provided at the expense of the Company to the effect that such amendment or supplement is
authorized or permitted by this Indenture.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Trust Indenture
Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by operation of TIA §
318(c), the imposed duties shall control.
SECTION 10.02 Notices.
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex, facsimile or overnight air courier guaranteeing next day delivery, to the other’s address:
If to the Company:
Erin Energy
Corporation
1330 Post Oak Boulevard, Suite 2250
Houston, Texas 77056
Attention:
General Counsel
Telephone: (713) 965-5100
Facsimile: (713) 965-5128
If to the Trustee:
[ ]
[ ]
[ ]
Attn: [ ]
Telephone: [ ]
Facsimile: [ ]
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
47
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid, to
the Holder’s address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only when received.
If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including
without limitation notices to the Trustee or the Company by Holders, shall be in writing, except as otherwise set forth herein.
In case
by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.
SECTION 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 10.04 Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the
Company shall, if requested by the Trustee, furnish to the Trustee at the expense of the Company:
(1) an Officers’
Certificate (which shall include the statements set forth in Section 10.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in Section 10.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
48
SECTION 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(1) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as
to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of the Company or the Trustee, as such, shall not have any liability for any
obligations of the Company under the Securities or for any obligations of the Company or the Trustee under this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of Securities.
SECTION 10.09
Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THE LAWS OF THE STATE OF NEW YORK REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
49
SECTION 10.10 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 Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.11 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.12 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall, to the fullest extent permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 10.13 Counterpart Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 10.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
50
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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| ERIN ENERGY CORPORATION |
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| By: |
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| Name: |
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| Title: |
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| [
], as Trustee |
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| By: |
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| Name: |
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| Title: |
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51
Exhibit 4.7
ERIN ENERGY CORPORATION
as
Issuer
and
[
]
as Trustee
Indenture
Dated as of
[ , ]
Subordinated
Debt Securities
ERIN ENERGY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ,
]
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| Section of
Trust Indenture
Act of 1939 |
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Section(s) of
Indenture |
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§310 |
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(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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Not Applicable |
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(a)(4) |
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Not Applicable |
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(a)(5) |
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7.10 |
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(b) |
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7.08, 7.10 |
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§311 |
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(a) |
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7.11 |
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(b) |
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7.11 |
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(c) |
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Not Applicable |
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§312 |
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(a) |
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2.07 |
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(b) |
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11.03 |
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(c) |
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11.03 |
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§313 |
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(a) |
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7.06 |
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(b) |
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7.06 |
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(c) |
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7.06 |
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(d) |
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7.06 |
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§314 |
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(a) |
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4.03, 4.04 |
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(b) |
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Not Applicable |
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(c)(1) |
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11.04 |
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(c)(2) |
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11.04 |
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(c)(3) |
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Not Applicable |
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(d) |
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Not Applicable |
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(e) |
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11.05 |
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§315 |
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(a) |
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7.01(b) |
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(b) |
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7.05 |
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(c) |
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7.01(a) |
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(d) |
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7.01(c) |
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(d)(1) |
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7.01(c)(1) |
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(d)(2) |
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7.01(c)(2) |
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(d)(3) |
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7.01(c)(3) |
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(e) |
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6.11 |
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§316 |
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(a)(1)(A) |
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6.05 |
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(a)(1)(B) |
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6.04 |
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(a)(2) |
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Not Applicable |
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(a)(last sentence) |
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2.11 |
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(b) |
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6.07 |
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§317 |
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(a)(1) |
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6.08 |
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(a)(2) |
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6.09 |
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(b) |
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2.06 |
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§318 |
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(a) |
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11.01 |
| Note: |
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
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Page |
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| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
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| SECTION 1.01 |
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Definitions |
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1 |
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| SECTION 1.02 |
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Other Definitions |
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7 |
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| SECTION 1.03 |
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Incorporation by Reference of Trust Indenture Act |
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7 |
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| SECTION 1.04 |
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Rules of Construction |
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8 |
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| ARTICLE II THE SECURITIES |
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8 |
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| SECTION 2.01 |
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Amount Unlimited; Issuable in Series |
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8 |
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| SECTION 2.02 |
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Denominations |
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11 |
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| SECTION 2.03 |
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Forms Generally |
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11 |
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| SECTION 2.04 |
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Execution, Authentication, Delivery and Dating |
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12 |
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| SECTION 2.05 |
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Registrar and Paying Agent |
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13 |
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| SECTION 2.06 |
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Paying Agent to Hold Money in Trust |
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14 |
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| SECTION 2.07 |
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Holder Lists |
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14 |
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| SECTION 2.08 |
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Transfer and Exchange |
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15 |
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| SECTION 2.09 |
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Replacement Securities |
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15 |
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| SECTION 2.10 |
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Outstanding Securities |
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15 |
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| SECTION 2.11 |
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Original Issue Discount, Foreign-Currency Denominated and Treasury Securities |
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16 |
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| SECTION 2.12 |
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Temporary Securities |
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16 |
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| SECTION 2.13 |
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Cancellation |
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16 |
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| SECTION 2.14 |
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Payments; Defaulted Interest |
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17 |
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| SECTION 2.15 |
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Persons Deemed Owners |
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17 |
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| SECTION 2.16 |
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Computation of Interest |
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17 |
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| SECTION 2.17 |
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Global Securities; Book-Entry Provisions |
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18 |
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| ARTICLE III REDEMPTION |
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20 |
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| SECTION 3.01 |
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Applicability of Article |
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20 |
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| SECTION 3.02 |
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Notice to the Trustee |
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20 |
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| SECTION 3.03 |
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Selection of Securities To Be Redeemed |
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20 |
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| SECTION 3.04 |
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Notice of Redemption |
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21 |
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| SECTION 3.05 |
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Effect of Notice of Redemption |
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22 |
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| SECTION 3.06 |
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Deposit of Redemption Price |
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22 |
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| SECTION 3.07 |
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Securities Redeemed in Part |
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22 |
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| SECTION 3.08 |
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Purchase of Securities |
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23 |
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| SECTION 3.09 |
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Mandatory and Optional Sinking Funds |
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23 |
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| SECTION 3.10 |
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Satisfaction of Sinking Fund Payments with Securities |
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23 |
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| SECTION 3.11 |
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Redemption of Securities for Sinking Fund |
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23 |
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| ARTICLE IV COVENANTS |
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24 |
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| SECTION 4.01 |
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Payment of Securities |
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24 |
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| SECTION 4.02 |
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Maintenance of Office or Agency |
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24 |
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| SECTION 4.03 |
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SEC Reports; Financial Statements |
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25 |
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| SECTION 4.04 |
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Compliance Certificate |
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26 |
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| SECTION 4.05 |
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Corporate Existence |
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26 |
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| SECTION 4.06 |
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Waiver of Stay, Extension or Usury Laws |
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26 |
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| SECTION 4.07 |
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Additional Amounts |
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26 |
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| ARTICLE V SUCCESSORS |
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27 |
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| SECTION 5.01 |
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Limitations on Mergers and Consolidations |
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27 |
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| SECTION 5.02 |
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Successor Person Substituted |
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27 |
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| ARTICLE VI DEFAULTS AND REMEDIES |
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28 |
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| SECTION 6.01 |
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Events of Default |
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28 |
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| SECTION 6.02 |
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Acceleration |
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30 |
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| SECTION 6.03 |
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Other Remedies |
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30 |
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| SECTION 6.04 |
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Waiver of Defaults |
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31 |
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| SECTION 6.05 |
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Control by Majority |
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31 |
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| SECTION 6.06 |
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Limitations on Suits |
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31 |
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| SECTION 6.07 |
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Rights of Holders to Receive Payment |
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32 |
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| SECTION 6.08 |
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Collection Suit by Trustee |
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32 |
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| SECTION 6.09 |
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Trustee May File Proofs of Claim |
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32 |
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| SECTION 6.10 |
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Priorities |
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33 |
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| SECTION 6.11 |
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Undertaking for Costs |
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34 |
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| ARTICLE VII TRUSTEE |
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34 |
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| SECTION 7.01 |
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Duties of Trustee |
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34 |
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| SECTION 7.02 |
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Rights of Trustee |
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35 |
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| SECTION 7.03 |
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May Hold Securities |
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36 |
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| SECTION 7.04 |
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Trustee’s Disclaimer |
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36 |
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| SECTION 7.05 |
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Notice of Defaults |
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36 |
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| SECTION 7.06 |
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Reports by Trustee to Holders |
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36 |
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| SECTION 7.07 |
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Compensation and Indemnity |
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36 |
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| SECTION 7.08 |
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Replacement of Trustee |
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37 |
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| SECTION 7.09 |
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Successor Trustee by Merger, etc. |
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39 |
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| SECTION 7.10 |
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Eligibility; Disqualification |
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39 |
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| SECTION 7.11 |
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Preferential Collection of Claims Against the Company |
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40 |
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| ARTICLE VIII DISCHARGE OF INDENTURE |
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40 |
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| SECTION 8.01 |
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Termination of the Company’s Obligations |
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40 |
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| SECTION 8.02 |
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Application of Trust Money |
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43 |
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| SECTION 8.03 |
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Repayment to Company |
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44 |
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| SECTION 8.04 |
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Reinstatement |
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44 |
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| ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS |
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44 |
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| SECTION 9.01 |
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Without Consent of Holders |
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44 |
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| SECTION 9.02 |
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With Consent of Holders |
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46 |
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| SECTION 9.03 |
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Compliance with Trust Indenture Act |
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48 |
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ii
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| SECTION 9.04 |
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Revocation and Effect of Consents |
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48 |
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| SECTION 9.05 |
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Notation on or Exchange of Securities |
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48 |
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| SECTION 9.06 |
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Trustee to Sign Amendments, etc. |
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49 |
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| ARTICLE X SUBORDINATION OF SECURITIES |
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49 |
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| SECTION 10.01 |
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Securities Subordinated to Senior Debt |
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49 |
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| SECTION 10.02 |
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No Payment on Securities in Certain Circumstances |
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49 |
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| SECTION 10.03 |
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Securities Subordinated to Prior Payment of All Senior Debt on Dissolution, Liquidation or Reorganization |
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50 |
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| SECTION 10.04 |
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Subrogation to Rights of Holders of Senior Debt |
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51 |
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| SECTION 10.05 |
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Obligations of the Company Unconditional |
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52 |
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| SECTION 10.06 |
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Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice |
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52 |
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| SECTION 10.07 |
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Application by Trustee of Amounts Deposited with It |
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53 |
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| SECTION 10.08 |
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Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt |
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53 |
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| SECTION 10.09 |
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Trustee to Effectuate Subordination of Securities |
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53 |
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| SECTION 10.10 |
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Right of Trustee to Hold Senior Debt |
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54 |
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| SECTION 10.11 |
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Article X Not to Prevent Events of Default |
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|
54 |
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| SECTION 10.12 |
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No Fiduciary Duty of Trustee to Holders of Senior Debt |
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54 |
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| SECTION 10.13 |
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Article Applicable to Paying Agent |
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54 |
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| ARTICLE XI MISCELLANEOUS |
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55 |
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| SECTION 11.01 |
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Trust Indenture Act Controls |
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55 |
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| SECTION 11.02 |
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Notices |
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55 |
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| SECTION 11.03 |
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Communication by Holders with Other Holders |
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56 |
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| SECTION 11.04 |
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Certificate and Opinion as to Conditions Precedent |
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56 |
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| SECTION 11.05 |
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Statements Required in Certificate or Opinion |
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57 |
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| SECTION 11.06 |
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Rules by Trustee and Agents |
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57 |
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| SECTION 11.07 |
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Legal Holidays |
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57 |
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| SECTION 11.08 |
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No Recourse Against Others |
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57 |
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| SECTION 11.09 |
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Governing Law |
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57 |
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| SECTION 11.10 |
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No Adverse Interpretation of Other Agreements |
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58 |
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| SECTION 11.11 |
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Successors |
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58 |
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| SECTION 11.12 |
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Severability |
|
|
58 |
|
| SECTION 11.13 |
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Counterpart Originals |
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|
58 |
|
| SECTION 11.14 |
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Table of Contents, Headings, etc. |
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58 |
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iii
INDENTURE dated as of [
, ] between Erin Energy Corporation, a Delaware corporation (the “Company”), and
[ ], a [ ],
as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s unsecured subordinated debentures, notes or other evidences of indebtedness (the “Securities”) to be issued from time to time in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
“Additional Amounts” means any additional amounts required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For 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, means 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.
“Agent” means any Registrar or Paying Agent.
“Bankruptcy Law” means Title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
“Board of Directors” means the Board of Directors or comparable governing body of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors or comparable governing body of the Company.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day that is not a Legal Holiday.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants or options (whether or not currently
exercisable), participations or other equivalents of or interests (however designated) in the equity (which includes, but is not limited to, common stock, preferred stock and partnership, limited liability company and joint venture interests) of
such Person (excluding any Debt or other debt securities that are convertible into, or exchangeable for, such equity).
1
“Capitalized Lease Obligation” of any Person means any obligation of such Person to pay
rent or other amounts under a lease of property, real or personal, that is required to be capitalized for financial reporting purposes in accordance with GAAP; and the amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
“Common Equity” of any Person means all Capital Stock of such Person that is generally entitled to
(i) vote in the election of directors of such Person or (ii) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management and
policies 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; provided, however, that for purposes of any provision contained
herein which is required by the TIA, “Company” shall also mean each other obligor (if any) on the Securities of a series.
“Company Order” and “Company Request” mean, respectively, a written order or request signed in the name of the Company by
two Officers of the Company, and delivered to the Trustee.
“Corporate Trust Office of the Trustee” means the principal office
of the Trustee at which at any particular time its corporate trust business shall be administered, which, in the case of [ ],
shall be [ ].
“Debt” of any Person means, without duplication: (i) all indebtedness or obligations of such Person for borrowed money (whether
or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof); (ii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (or reimbursement obligations with respect thereto), other than standby letters of credit, bid or performance bonds and other obligations issued by or for the account of such
Person in the ordinary course of business, to the extent not drawn or, to the extent drawn, if such drawing is reimbursed not later than the third Business Day following demand for reimbursement; (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, except trade payables and accrued expenses incurred in the ordinary course of business; (v) all Capitalized Lease Obligations of such Person; (vi) all Debt of others secured by a
lien on any asset of such Person, whether or not such Debt is assumed by such Person (provided that if the obligations so secured have not been assumed in full by such Person or are not otherwise such Person’s legal liability in full, then such
obligations shall be deemed to be in an amount equal to the greater of (a) the lesser of (1) the full amount of such obligations and (2) the fair market value of such assets, as determined in good faith by the Board of Directors of
such Person, which determination shall be evidenced by a Board Resolution, and (b) the amount of obligations as have been assumed by such Person or which are otherwise such Person’s legal liability); and (vii) all Debt of others (other
than endorsements in the ordinary course of business) guaranteed by such Person to the extent of such guarantee.
2
“Default” means any event, act or condition that is, or after notice or the passage of
time or both would be, an Event of Default.
“deliver” or “delivery” means, in the context of certificated Securities,
actual physical delivery of the certificated Securities to the relevant Person required hereunder, together with all endorsements, and in the context of Global Securities, the designation on the records of the Depositary of a change in the
beneficial interests of a holder in a Global Security.
“Depositary” means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial Depositary with respect to the Securities of such series, until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and thereafter “Depositary” shall mean or include such successor.
“Designated Senior Debt,” unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01,
means any Senior Debt that (i) in the instrument evidencing the same or the assumption or guarantee thereof (or related documents to which the Company is a party) is expressly designated as “Designated Senior Debt” for purposes of
this Indenture and (ii) satisfies such other conditions as may be provided with respect to the Securities of such series; provided that such instruments or documents may place limitations and conditions on the right of such Senior Debt to
exercise the rights of Designated Senior Debt.
“Disqualified Capital Stock” means, when used with respect to the Securities of
any series, (a) except as set forth in (b), with respect to the Company, Capital Stock of the Company that, by its terms or by the terms of any security into which it is convertible, exercisable or exchangeable, is, or upon the happening of an
event or the passage of time would be, required to be redeemed or repurchased (including at the option of the holder thereof) by the Company or any Subsidiary, in whole or in part, on or prior to the Stated Maturity of the Securities of such series,
and (b) with respect to any Subsidiary, any Capital Stock other than any Common Equity of such Subsidiary with no preference, privileges, or redemption or repayment provisions.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall
be legal tender for the payment of public and private debt.
“Exchange Act” means the Securities Exchange Act of 1934, as
amended, and any successor statute.
“GAAP” means generally accepted accounting principles in the United States 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, as in effect from time to time.
3
“Global Security” means a Security that is issued in global form in the name of the
Depositary with respect thereto or its nominee.
“Government Obligations” means, with respect to a series of Securities,
(i) direct obligations of a government that issues the currency in which the Securities of the series are payable for the payment of which the full faith and credit of such government is pledged, or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clause (i) or
(ii) above, are not callable or redeemable at the option of the issuer thereof; or (iii) depository receipts issued by a bank or trust company as custodian with respect to any such Government Obligations or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the account of the holder of a 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 Government Obligation evidenced by such depository receipt.
“Holder” means a Person in whose name a Security is registered.
“Indenture” means this Indenture as amended or supplemented from time to time pursuant to the provisions hereof, and includes the
terms of a particular series of Securities established as contemplated by Section 2.01.
“interest” means, with respect to
an Original Issue Discount Security that by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest
Payment Date,” when used with respect to any Security, shall have the meaning assigned to such term in the Security as contemplated by Section 2.01.
“Issue Date” means, with respect to Securities of a series, the first date on which the Securities of such series are originally
issued under this Indenture.
“Junior security” means, when used with respect to the Securities of any series, any Qualified
Capital Stock of the Company or any Subsidiary or any Debt of the Company that is subordinated in right of payment to the Securities of such series and has no scheduled installment of principal due, by redemption, sinking fund payment or otherwise,
on or prior to the Stated Maturity of the Securities of such series.
“Legal Holiday” means a Saturday, a Sunday or a day on
which banking institutions in any of The City of New York, New York; Houston, Texas or a Place of Payment are authorized or obligated by law, regulation or executive order to remain closed.
“Maturity” means, with respect to any Security, 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 thereof, or by declaration of acceleration, call for redemption or otherwise.
4
“Officer” means the Chairman of the Board, any Vice Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
“Officers’ Certificate” means a certificate signed by two Officers of a Person.
“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company or the Trustee.
“Original Issue Discount Security” means any Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or government or other agency, instrumentality or political subdivision thereof or other entity of any kind.
“Place of Payment” means, with respect to the Securities of any series, the place or places where the principal of, premium (if any)
and interest on and any Additional Amounts with respect to the Securities of that series are payable as specified in accordance with Section 2.01 subject to the provisions of Section 4.02.
“principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on the Security.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
“Redemption Date” means, with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption Price” means, with respect to any Security to be redeemed, the price at which it is to be redeemed
pursuant to this Indenture.
“Responsible Officer” means any officer within the corporate trust department of the Trustee having
direct responsibility for the administration of this Indenture or any other officer to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Rule 144A Securities” means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
“SEC” means the Securities and Exchange
Commission.
5
“Securities” has the meaning stated in the preamble of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Security Custodian” means, with respect to
Securities of a series issued in global form, the Trustee for Securities of such series, as custodian with respect to the Securities of such series, or any successor entity thereto.
“Senior Debt” of the Company, unless otherwise provided with respect to the Securities of a series as contemplated by
Section 2.01, means (i) all Debt of the Company, whether currently outstanding or hereafter created, incurred or assumed, unless, by the terms of the instrument creating or evidencing such Debt or pursuant to which such Debt is
outstanding, it is provided that such Debt is not superior in right of payment to the Securities or to other Debt which is pari passu with or subordinated to the Securities, and (ii) any modifications, refunding, deferrals, renewals or
extensions of any such Debt or any securities, notes or other evidences of Debt issued in exchange for such Debt; provided that, unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01, in no
event shall “Senior Debt” include (a) Debt of the Company owed or owing to any Subsidiary or any officer, director or employee of the Company or any Subsidiary, (b) Debt to trade creditors or (c) any liability for taxes owed
or owing by the Company.
“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 as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a Person at least a majority of the outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock having voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of any contingency.
“surrender” shall have the same
meaning as “deliver” in the context of the surrender of a Security.
“TIA” means the Trust Indenture Act of 1939, as
amended, as in effect on the date hereof; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.
“Trustee” means the Person named as such above until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter “Trustee” means 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 means
the Trustee with respect to Securities of that series.
“United States” means the United States of America (including the States
and the District of Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
6
“U.S. Government Obligations” means Government Obligations with respect to Securities
payable in Dollars.
SECTION 1.02 Other Definitions.
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| Term |
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Defined
in Section |
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| “Agent Members” |
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2.17 |
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| “Bankruptcy Custodian” |
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6.01 |
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| “Conversion Event” |
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6.01 |
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| “covenant defeasance” |
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8.01 |
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| “Event of Default” |
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6.01 |
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| “Exchange Rate” |
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2.11 |
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| “Judgment Currency” |
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6.10 |
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| “legal defeasance” |
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8.01 |
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| “mandatory sinking fund payment” |
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3.09 |
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| “optional sinking fund payment” |
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3.09 |
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| “Paying Agent” |
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2.05 |
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| “Payment Blocking Notice” |
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10.02 |
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| “Payment Default” |
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10.02 |
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| “Registrar” |
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2.05 |
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| “Required Currency” |
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6.10 |
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| “Successor” |
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5.01 |
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture (and
if the Indenture is not qualified under the TIA at the time, as if it were so qualified unless otherwise provided). The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company or any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
7
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
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(1) |
a term has the meaning assigned to it; |
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(2) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
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(3) |
“or” is not exclusive; |
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(4) |
words in the singular include the plural, and in the plural include the singular; |
| |
(5) |
provisions apply to successive events and transactions; and |
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(6) |
all references in this instrument to Articles and Sections are references to the corresponding Articles and Sections in and of this instrument. |
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth, or
determined in the manner provided, in an Officers’ Certificate of the Company or in a Company Order, 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 the Securities of all
other series);
(2) if there is to be a limit, the limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08,
2.09, 2.12, 2.17, 3.07 or 9.05 and except for any Securities that, pursuant to Section 2.04 or 2.17, are deemed never to have been authenticated and delivered hereunder); provided, however, that unless otherwise provided in the
terms of the series, the authorized aggregate principal amount of such series may be increased before or after the issuance of any Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to such effect;
8
(3) whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to be issuable in permanent global form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests in any such Global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.17, and the initial Depositary and
Security Custodian, if any, for any Global Security or Securities of such series;
(4) the manner in which any interest
payable on a temporary Global Security on any Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium (if any) on the Securities of the series is payable or the method
of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the Securities of the
series shall bear interest, if any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the record date for the interest payable on any Securities on any Interest Payment Date, or if other than provided herein, the Person to whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02, the principal of, premium (if any) and interest
on and any Additional Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods
within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is
to have that option, and the manner in which the Company must exercise any such option, if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations
of $1,000 and any integral multiple thereof, the denomination in which any Securities of that series shall be issuable;
(11) if other than Dollars, the currency or currencies (including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or any other securities or property of the Company or any other Person, in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect
to the Securities of the series shall be payable;
9
(12) if the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to be
payable, the currency or currencies (including composite currencies) in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is made shall
be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(13) if the
amount of payments of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series may be determined with reference to any commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal
amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(15) any additional means of satisfaction and discharge of this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article VIII or any modifications of or deletions from such conditions or limitations;
(16) any deletions or modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the
Company set forth in Article IV pertaining to the Securities of the series;
(17) any restrictions or other provisions with
respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities or any other securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition or event, the terms and conditions
for such conversion or exchange;
(19) whether the Securities of the series are to be entitled to the benefit of
Section 4.03(b) (and accordingly constitute Rule 144A Securities);
(20) any modifications to the definitions of
“Designated Senior Debt” and “Senior Debt,” to Article X or to the other provisions regarding subordination with respect to the Securities of the series; and
10
(21) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers’ Certificate or Company Order referred to above or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action, together with such Board Resolution, shall be set forth in an Officers’ Certificate or 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 or Company Order setting forth the terms of the series.
The Securities shall be
subordinated in right of payment to Senior Debt as provided in Article X and/or as specified as contemplated pursuant to this Section 2.01.
SECTION
2.02 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by
Section 2.01. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The
Securities of each series shall be in fully registered form and in substantially such form or forms (including temporary or permanent global form) established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto. The
Securities may have notations, legends or endorsements required by law, securities exchange rule, the Company’s certificate of incorporation, bylaws or other similar governing documents, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). A copy of the Board Resolution establishing the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
The definitive
Securities of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution thereof.
11
The Trustee’s certificate of authentication shall be in substantially the following form:
“This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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| [ ],
as Trustee |
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| By: |
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Authorized Officer”. |
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature. If an Officer of the Company
whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any Security has been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company delivers such Security to the Trustee for cancellation as provided in Section 2.13, together with a written statement (which need not comply with Section 11.05
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.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for original issue upon a Company Order for the authentication and
delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such order shall specify the amount of the Securities to be authenticated, the date on which the original
issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the Securities of such series not otherwise determined. If provided for in such procedures, such Company Order may authorize
(1) authentication and delivery of Securities of such series for original issue from time to time, with certain terms (including, without limitation, the Maturity dates or dates, original issue date or dates and interest rate or rates) that
differ from Security to Security and (2) may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to
12
above and the other documents required by Section 11.04), and (subject to Section 7.01) shall be fully protected in relying upon:
(a) an Officers’ Certificate setting forth the Board Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other similar laws in effect from time to time affecting the rights of creditors generally, and the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or before the time
of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of Securities where Securities of such series may be presented for registration
of transfer or exchange (“Registrar”) and an office or agency where Securities of such series may be presented for
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payment (“Paying Agent”). The Registrar shall keep a register of the Securities of such series and of their transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar without notice
to any Holder. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional Amounts with respect to Securities and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Each Paying Agent shall otherwise comply with TIA § 317(b).
SECTION 2.07 Holder Lists.
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 Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar with respect to a
series of Securities, the Company shall furnish to the Trustee at least five Business Days before each Interest Payment Date with respect to such series of Securities, and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
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SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01:
When Securities of any series are presented to the Registrar with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements and the requirements of
this Indenture for such transactions are met; provided, however, that the Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form reasonably
satisfactory to the Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the
Registrar’s written request and submission of the Securities or Global Securities. No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.12, 3.07 or
9.05). The Trustee shall authenticate Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the contrary, the Company shall not be required to register the transfer or exchange
of (a) any Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed portion of any Security being redeemed in part, or (b) any Security during the period beginning 15 Business Days prior to the
mailing of notice of any offer to repurchase Securities of the series required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of business on the day of mailing.
SECTION 2.09 Replacement Securities.
If
any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims that the Security has been destroyed, lost or stolen and the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft
of such Security, the Company shall issue and the Trustee shall authenticate a replacement Security of the same series if the Trustee’s requirements are met. If any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. If required by the Trustee or the Company, such Holder must furnish an indemnity bond that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any authenticating agent from any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge a Holder for their expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.10 Outstanding Securities.
The
Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee hereunder
and those described in this Section 2.10 as not outstanding.
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If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the principal amount of any
Security is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
A Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency
Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have concurred
in any direction, amendment, supplement, waiver or consent, (a) the principal amount of an Original Issue Discount Security shall be the principal amount thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the Dollar equivalent, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency, as such rate is certified for customs purposes by the Federal Reserve Bank of New York (the “Exchange Rate”) on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of original issuance of such Security, of the amount determined as provided in
(a) above), of such Security and (c) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded, except that, for the purpose of determining
whether the Trustee shall be protected in relying upon any such direction, amendment, supplement, waiver or consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until
definitive Securities of any series are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to
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them for registration of transfer, exchange, payment or redemption or for credit against any sinking fund payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, redemption, replacement or cancellation or for credit against any sinking fund. Unless the Company shall direct in writing that canceled Securities be returned to it, all canceled Securities held by the Trustee shall be
disposed of in accordance with the usual disposal procedures of the Trustee, and the Trustee shall maintain a record of their disposal. The Company may not issue new Securities to replace Securities that have been paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at the close of business on the record date next preceding such Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The Holder must surrender a Security to a Paying Agent to collect principal payments. Unless otherwise provided with respect to the Securities of any series,
the Company will pay the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities in Dollars. Such amounts shall be payable at the offices of the Trustee or any Paying Agent, provided that at
the option of the Company, the Company may pay such amounts (1) by wire transfer with respect to Global Securities or (2) by check payable in such money mailed to a Holder’s registered address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of any series, the Company shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each case at the rate provided in the Securities of such series and in Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20 days’ prior written notice from the Company setting
forth such special record date and the interest amount to be paid) shall mail to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The
Company, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payments of principal of, premium (if any) or interest on or any
Additional Amounts with respect to such Security and for all other purposes. None of the Company, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a year comprising twelve 30-day months.
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SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global Security shall represent such of the outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security 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 in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other written form of
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 2.04 and, if applicable,
Section 2.12, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to the
Securities of any series that are represented by a Global 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 Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may 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 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 11.05 and need not be accompanied by an Opinion of Counsel.
Members of, or
participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under
such Global Security, and the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to
take any action that a Holder of Securities of such series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian, or any agent of the
Company, the Trustee or the Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial owner of any Security.
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Notwithstanding Section 2.08, and except as otherwise provided pursuant to
Section 2.01: Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Security
may be transferred in accordance with the rules and procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Security if, and only if, either (1) the
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Security and a successor Depositary is not appointed by the Company within 90 days of such notice, (2) an Event of Default has occurred with
respect to such series and is continuing and the Registrar has received a request from the Depositary to issue Securities in lieu of all or a portion of the Global Security (in which case the Company shall deliver Securities within 30 days of such
request) or (3) the Company determines not to have the Securities represented by a Global Security.
In connection with any transfer
of a portion of the beneficial interests in a Global Security to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interests in the Global Security to be transferred, and the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication and delivery of 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 interests in a Global Security to beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interests in the Global Security, an equal aggregate principal amount of Securities of authorized denominations.
Neither the Company nor the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on
account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related Global Security Holder
or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from such Global Security Holder or the Depositary for all purposes (including with respect to
the registration and delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence
of the third paragraph of Section 2.04 shall apply to any Global Security if such Global Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with written instructions (which
need not comply with Section 11.05 and need not be accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by
the last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless
otherwise specified as contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to any Global Security shall be made to the Depositary.
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The Company in issuing Securities of any series 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 of Securities of such series; provided that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
Notwithstanding anything herein to the contrary, delivery or surrender of a Security shall not be required in the case of Global Securities in
order to obtain the rights or benefits provided hereunder upon the delivery or surrender of a Security.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of
Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article III.
SECTION 3.02
Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall notify the
Trustee of the Redemption Date and the principal amount of Securities of such series to be redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
by delivering to the Trustee an Officers’ Certificate stating that such redemption will comply with the provisions of this Indenture and of the Securities of such series. Any such notice may be canceled at any time prior to the mailing of such
notice of such redemption to any Holder and shall thereupon be void and of no effect.
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities of such series (and tenor) not previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall deem appropriate in accordance with industry standards at the time of such redemption and that may provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of
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that series or of the principal amount of Global Securities of such series; provided that, if at the time of redemption such Securities are registered as a Global Security, the Depositary
shall determine, in accordance with its procedures, the principal amount of such Securities held by each beneficial owner of Securities to be redeemed.
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the
context otherwise requires, all provisions relating to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be redeemed only in part, to the portion of the principal amount thereof which has been or is to be
redeemed.
SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 days (or not less than 15 days in the case of
convertible Securities) nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price (or the method of calculating or determining the Redemption Price);
(3) that, unless the Company defaults in making the redemption payment, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the principal amount thereof to be redeemed and that on and after
the Redemption Date, upon surrender for cancellation of such Security to the Paying Agent, a new Security or Securities in the aggregate principal amount equal to the unredeemed portion thereof will be issued without charge to the Holder;
(5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price and the name
and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the case;
(7) if such Securities are convertible into or exchangeable for capital stock, other debt securities (including Securities),
warrants, other equity securities or any other securities or property of the Company or any other Person, the name and address of the conversion or exchange agent, the date on which the right to convert or exchange is terminated and the conversion
or exchange rate; and
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(8) the CUSIP number, if any, relating to such Securities.
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
written request, by the Trustee in the name and at the expense of the Company.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption shall be paid at the Redemption Price, but interest installments whose maturity is on or prior to such Redemption Date will be payable on the relevant Interest Payment
Dates to the Holders of record at the close of business on the relevant record dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of
Redemption Price.
By 11:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or the Paying
Agent (or, if the Company is acting as the Paying Agent, segregate and hold in trust as provided in Section 2.06) an amount of money in same day funds sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on and any Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, interest on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Securities are presented for payment, and the Holders of such
Securities shall have no further rights with respect to such Securities except for the right to receive the Redemption Price upon surrender of such Securities. If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, any Additional Amounts, and, to the extent lawful, accrued interest thereon shall, until paid, bear interest from the Redemption Date at the rate specified pursuant to Section 2.01 or provided in the
Securities or, in the case of Original Issue Discount Securities, such Securities’ yield to maturity.
SECTION 3.07 Securities Redeemed in
Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a new Security or Securities, of the same series and 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 that is not redeemed.
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SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities in the open market or by private agreement. Any such acquisition shall not operate as or be deemed for any purpose to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall apply to all Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company may deliver outstanding Securities of a series (other than any previously called for redemption) and may apply as a credit
Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such series of Securities; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate of the Company specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and will also deliver or cause to be delivered to the Trustee any
Securities to be so delivered. Failure of the Company to timely deliver or cause to be delivered such Officers’ Certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute the election of
the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section.
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If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the
next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable Exchange Rate on the date of original issue of the
applicable Securities) or a lesser sum if the Company shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof as aforesaid) or less and the Company makes no such request then it shall
be carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of
Securities.
The Company shall pay the principal of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of each series on the dates and in the manner provided in the Securities of such series and in this Indenture. Principal, premium, interest and any Additional Amounts shall be considered paid on the date due if the Paying Agent (other
than the Company or a Subsidiary) holds by 11:00 a.m., New York City time, on that date money deposited by the Company designated for and sufficient to pay all principal, premium, interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium
(if any), at a rate equal to the then applicable interest rate on the Securities to the extent lawful; and it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and any Additional Amount (without regard to any applicable grace period) at the same rate to the extent lawful.
SECTION
4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities of that series may be presented for registration of transfer or exchange, where Securities of that series may be presented for payment and where
notices and demands to or upon
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the Company in respect of the Securities of that series and this Indenture may be served. Unless otherwise designated by the Company by written notice to the Trustee, such office or agency shall
be the office of the Trustee in The City of New York, which on the date hereof is located at
[ ], New
York, New York
[ ]. The
Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
SECTION 4.03 SEC Reports; Financial Statements.
(a) If the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company shall file with the Trustee, within 15 days after it
files the same with the SEC, copies of the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If this Indenture is qualified under the TIA, but not otherwise, the Company shall also comply with the provisions of TIA § 314(a).
(b) If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Company shall furnish to all
Holders of Rule 144A Securities and prospective purchasers of Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under
the Securities Act of 1933, as amended.
(c) The Company intends to file the reports, information and documents referred to in
Section 4.03(a) hereof with the SEC in electronic form pursuant to Regulation S-T promulgated by the SEC using the SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system. The Company shall notify the Trustee in
the manner prescribed herein of each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Company of
such reports to the Trustee in compliance with the provisions of TIA § 314(a). The Trustee shall have no duty to search for or obtain any electronic or other filings that the Company makes with the SEC, regardless of whether such filings are
periodic, supplemental or otherwise. Delivery of the reports, information and documents to the Trustee pursuant to this Section 4.03 shall be solely for the purposes of compliance with this Section 4.03 and with TIA § 314(a). The
Trustee’s receipt of such reports, information and documents shall not constitute notice to it of the content thereof or of any matter determinable from the content thereof, including the Company’s compliance with any of its covenants
hereunder, as to which the Trustee is entitled to rely upon Officers’ Certificates.
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SECTION 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a statement signed by the
principal executive officer, principal financial officer or principal accounting officer of the Company, which need not constitute an Officers’ Certificate, complying with TIA § 314(a)(4) and stating that in the course of performance by
the signing Officer of his duties as such Officer of the Company he would normally obtain knowledge of the keeping, observing, performing and fulfilling by the Company of its obligations under this Indenture, and further stating that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may have knowledge and what action the Company is taking or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any series are outstanding, deliver to the Trustee, as soon as practicable, but in no event
more than five Business Days, after any Officer of the Company becoming aware of any Default or Event of Default under this Indenture, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its
existence.
SECTION 4.06 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive it from paying all or any portion of the principal of or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 4.07 Additional Amounts.
If the
Securities of a series expressly provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series Additional Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in respect of, any
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Security of any series or the net proceeds received from the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section 4.07 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 4.07 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.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
The Company shall not consolidate with or merge into any Person, or sell, lease, convey, assign, transfer or otherwise dispose of, in any
transaction or series of transactions, all or substantially all of its assets to any Person, unless:
(1) either
(a) the Company shall be the continuing Person or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged, or to which such sale, lease, conveyance, assignment, transfer or other
disposition shall be made (collectively, the “Successor”), is organized or existing under the laws of the United States of America, any State thereof or the District of Columbia, Australia, the Bahamas, Barbados, Bermuda, the British
Virgin Islands, the Cayman Islands, any of the Channel Islands, any member of the European Union (as constituted on the date hereof) or any other member of the European Union that becomes a member after the date hereof, Switzerland, the Netherlands
Antilles or any state, province or political subdivision of the foregoing, and expressly assumes by supplemental indenture the due and punctual payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to
all the Securities and the performance of the Company’s covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom;
(3) in the case of clause (1)(b) above, in the event that the
Successor is organized in a jurisdiction (other than the United States of America, any political subdivision thereof or any State thereof or the District of Columbia) which is different from the jurisdiction in which the obligor on the Securities
was organized immediately before giving effect to the transaction or series of transactions, (a) the Successor delivers to the Trustee an Opinion of Counsel stating that the obligations of the Successor are enforceable under the laws of the new
jurisdiction of its formation subject to customary exceptions; and (b) the Successor agrees in writing to submit to jurisdiction to the competent courts of the State of New York or the federal district court sitting in The City of New York and
appoints an agent in the State of New York for the service of process, each under terms satisfactory to the Trustee; and
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(4) in the case of clause (1)(b) above, the Successor delivers to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale, lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, the Successor formed by such consolidation or into which the Company is merged or to which such sale, lease, conveyance, assignment, transfer or other disposition is made shall succeed
to, and be substituted for, and may exercise every right and power of the Company under this Indenture and the Securities with the same effect as if such Successor had been named as the Company herein, and the predecessor Company, in the case of a
sale, conveyance, assignment, transfer or other disposition, shall be released from all obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or specifically deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for such series, an “Event of Default,” wherever used herein with respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional Amounts with respect to any Security of that series
when the same becomes due and payable and such default continues for a period of 30 days;
(2) the Company defaults in the
payment of (A) the principal of any Security of that series at its Maturity or (B) premium (if any) on any Security of that series when the same becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series,
and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other than an agreement, covenant or provision that has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than
that series) which shall not have been remedied within the specified period after written notice, as specified in the last paragraph of this Section 6.01;
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(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy Custodian of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or a Bankruptcy Custodian for all or substantially all of the property of
the Company, or
(C) orders the liquidation of the Company; or
(7) any other Event of Default provided with respect to Securities of that series occurs.
The term “Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
When a Default or Event of Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium (if any) or interest on or Additional Amounts
with respect to any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency or currencies are not available to the Company for making payment thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company (a “Conversion Event”), the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in Dollars in an amount equal to the
Dollar equivalent of the amount payable in such other currency, as determined by the Company by reference to the Exchange Rate on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made under such circumstances in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this
Indenture.
Promptly after the occurrence of a Conversion Event, the Company shall give written notice thereof to the Trustee; and the
Trustee, promptly after receipt of such notice, shall give notice thereof in the manner provided in Section 11.02 to the Holders. Promptly after the making of any payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 11.02 to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such payments.
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A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of the series affected by such Default (or, in the case of a Default under clause (4) of this Section 6.01, if
outstanding Securities of other series are affected by such Default, then at least 25% in principal amount of the then outstanding Securities so affected) notify the Company and the Trustee, of the Default, and the Company fails to cure the Default
within 90 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.”
SECTION 6.02 Acceleration.
If an Event
of Default with respect to any Securities of any series at the time outstanding (other than an Event of Default specified in clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding Securities of the series affected by such Event of Default (or, in the case of an Event of Default described in clause (4) of Section 6.01, if outstanding Securities of
other series are affected by such Event of Default, then at least 25% in principal amount of the then outstanding Securities so affected) by notice to the Company and the Trustee, may declare the principal of (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) and all accrued and unpaid interest on all then outstanding Securities of such series or of all series, as the case may be, to be due
and payable. Upon any such declaration, the amounts due and payable on the Securities shall be due and payable immediately. If an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs, such amounts shall ipso
facto become and be immediately due and payable without any declaration, notice or other act on the part of the Trustee or any Holder. The Holders of a majority in principal amount of the then outstanding Securities of the series affected by such
Event of Default or all series so affected, as the case may be, by written notice to the Trustee may rescind an acceleration and its consequences (other than nonpayment of principal of or premium or interest on or any Additional Amounts with respect
to the Securities) if (i) the rescission would not conflict with any judgment or decree, (ii) all existing Events of Default with respect to Securities of that series (or of all series, as the case may be) have been cured or waived, except
nonpayment of principal, premium, interest or any Additional Amounts that has become due solely because of the acceleration, and (iii) the Trustee has been paid any amounts due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
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SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then outstanding Securities of any series or of all
series affected thereby (acting as one class) by notice to the Trustee may waive an existing or past Default or Event of Default with respect to such series or all series so affected, as the case may be, and its consequences (including waivers
obtained in connection with a tender offer or exchange offer for Securities of such series or all series so affected or a solicitation of consents in respect of Securities of such series or all series so affected, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities of such series or all series so affected (but the terms of such offer or solicitation may vary from series to series)), except (1) a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on or any Additional Amounts with respect to any Security or (2) a continued Default in respect of a provision that under Section 9.02 cannot be amended or
supplemented without the consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a majority in principal amount of the then outstanding Securities of such series may
direct in writing the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it relating to or arising under an Event of Default described in clause (1), (2),
(3) or (7) of Section 6.01, and with respect to all Securities, the Holders of a majority in principal amount of all the then outstanding Securities affected may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it not relating to or arising under such an Event of Default. However, the Trustee may refuse to follow any direction that conflicts with applicable law
or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion from Holders directing the Trustee against all losses and expenses
caused by taking or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with respect to this Indenture or the Securities
of such series only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default with respect
to such series;
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(2) the Holders of at least 25% in principal amount of the then outstanding
Securities of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to
the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply
with the request within 60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day
period, the Holders of a majority in principal amount of the Securities of such series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal of and premium, if
any, and interest on and any Additional Amounts with respect to the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express trust against the Company for the amount of principal, premium (if any), interest and any Additional Amounts remaining unpaid on the Securities of the series affected by the Event of
Default, and interest on overdue principal and premium, if any, and, to the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings relative to the Company or its creditors or properties and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such
claims and any Bankruptcy Custodian 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 to it
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for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties which the Holders of the Securities may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee
collects any money pursuant to this Article VI, subject to Article X, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in respect of which or for the benefit of which such money has
been collected, for principal, premium (if any), interest and any Additional Amounts ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium (if any), interest and any
Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix record dates and payment dates for any payment to Holders pursuant to this
Article VI.
To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment against the Company in any
court it is necessary to convert the sum due in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities of any series (the “Required Currency”) into a currency in which a judgment
will be rendered (the “Judgment Currency”), the rate of exchange used for purposes of rendering the judgment 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 6.10 caused by a change in exchange rates between the time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section 6.10 to Holders of Securities, but payment of such judgment shall discharge all amounts owed by the Company on the claim or claims underlying such judgment.
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SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series:
(1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such certificates and opinions to determine whether, on
their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does
not limit the effect of Section 7.01(b);
(2) 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
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
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(d) Whether or not therein expressly so provided, every provision of this Indenture that in any
way relates to the Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of, premium
(if any) and interest on and Additional Amounts with respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers’ Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such instruction, Officers’ Certificate or
Opinion of Counsel. The Trustee may consult at the Company’s expense with counsel of its selection and the 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.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect
to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by
any Holder of the Securities, and such notice references the Securities and this Indenture.
(g) The permissive rights of the Trustee
enumerated herein shall not be construed as duties.
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SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee’s Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision hereof, it shall not be responsible for the use or application of any money received by any Paying Agent
other than the Trustee and it shall not be responsible for any statement or recital herein or any statement in the Securities other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a
Default or Event of Default with respect to the Securities of any series occurs and is continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such series a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts or any sinking fund installment with respect to the Securities of such series, the Trustee
may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of Securities of such series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 of each year after the execution of this Indenture, the Trustee shall mail to Holders of a series and the
Company a brief report dated as of such reporting date that complies with TIA § 313(a); provided, however, that if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date with respect to a series, no report need be transmitted to Holders of such series. The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c)
and 313(d).
A copy of each report at the time of its mailing to Holders of a series of Securities shall be filed by the Company with the
SEC and each securities exchange, if any, on which the Securities of such series are listed. The Company shall notify the Trustee if and when any series of Securities is listed on any securities exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company and the
Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
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The Company hereby indemnifies the Trustee and any predecessor Trustee against any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred by it arising out of or in connection with the acceptance or administration of its duties under this
Indenture, except as set forth in the next following paragraph. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the
Trustee’s negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.07, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of any series. Such
lien and the Company’s obligations under this Section 7.07 shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(5) or (6) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be
discharged at any time with respect to the Securities of one or more series by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company 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). Within one year after the successor Trustee with respect to
the Securities of any series takes office, the Holders of a majority in principal amount of the Securities of such series then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does not take office within 30 days after the retiring or removed Trustee
resigns or is removed, the retiring or removed Trustee (at the expense of the Company), the Company or the Holders of at least 10% in principal amount of the then outstanding Securities of such series may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities
of a series fails to comply with Section 7.10, any Holder of Securities of such series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such series.
In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
In case of the appointment 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 (but not all) series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers 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 confirm that all the rights, powers 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. Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and 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. 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 shall have all the rights, powers and duties of the retiring
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Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. On request of the Company or any successor Trustee, such retiring
Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Such retiring Trustee shall,
however, have the right to deduct its unpaid fees and expenses, including attorneys’ fees.
Notwithstanding replacement of the
Trustee or Trustees pursuant to this Section 7.08, the obligations of the Company under Section 7.07 shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, however, that in the case of a transfer of all or substantially all of its corporate trust business to
another corporation, the transferee corporation expressly assumes all of the Trustee’s liabilities hereunder.
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; and in
case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation or banking association organized and doing business under the laws
of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and
shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2) and 310(a)(5). The
Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in
the penultimate paragraph of TIA § 310(b).
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SECTION 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to and shall comply with the provisions of TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF
INDENTURE
SECTION 8.01 Termination of the Company’s Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a series (except that the Company’s obligations
under Section 7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series theretofore authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding
Securities of such series 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, in the case of clause (i), (ii) or (iii) above, the Company has irrevocably deposited or caused to be deposited with the Trustee
as funds (immediately available to the Holders in the case of clause (i)) in trust for such purpose (x) money in the currency in which payment of the Securities of such series is to be made in an amount, or (y) Government Obligations with
respect to such series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such series is to be made in an amount or (z) a
combination thereof, which will be sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally recognized firm of independent public accountants expressed in a
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written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Securities of such series for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or for principal, premium, if any, and interest to the Stated Maturity or Redemption Date, as the case may be; or
(C) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all
other sums payable by it hereunder with respect to the Securities of such series; and
(3) the Company has delivered to the
Trustee an Officers’ Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, together with an Opinion of Counsel to the same
effect.
(b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series as contemplated by
Section 2.01, the Company may, at its option, terminate certain of its obligations under this Indenture (“covenant defeasance”) with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of Securities of such series, (i) money in the currency in which payment of the Securities of such series is
to be made in an amount, or (ii) Government Obligations with respect to such series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated
Maturity thereof or upon redemption as provided in Section 8.01(e)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such
Government Obligations to the payment of said principal, premium (if any) and interest with respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers’ Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, and an Opinion of Counsel to the same effect;
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(3) no 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;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a private letter ruling issued by the United States Internal Revenue Service to the effect that the Holders will not recognize income, gain or loss for United
States Federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.01(b) and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised;
(5) the Company has complied with any additional
conditions specified pursuant to Section 2.01 to be applicable to the discharge of Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a conflicting interest as defined in TIA § 310(b).
In such event, this Indenture shall cease to be of further effect (except as set forth in this paragraph), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture. However, the Company’s obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08 and 8.04, the Trustee’s and Paying
Agent’s obligations in Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Securities of such series are no longer outstanding. Thereafter, only the Company’s
obligations in Section 7.07 and the Trustee’s and Paying Agent’s obligations in Section 8.03 shall survive with respect to Securities of such series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the other conditions set forth herein, the
Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under this Indenture with respect to the Securities of such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the issuer’s option.
(c) If the Company has previously complied or is concurrently complying with Section 8.01(b) (other than any additional conditions
specified pursuant to Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities of a series, then, unless this Section 8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect that its obligations to make payments with respect to Securities of such series be discharged (“legal defeasance”), if:
(1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof shall have occurred at any
time during the period ending on the 91st day after the date of deposit contemplated by Section 8.01(b) (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
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(2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.01(b)(4) with respect to such legal
defeasance, which opinion is based on (i) a private letter ruling issued by the United States Internal Revenue Service addressed to the Company, (ii) a published ruling of the United States Internal Revenue Service pertaining to a
comparable form of transaction or (iii) a change in the applicable United States Federal income tax law (including regulations) after the date of this Indenture;
(3) the Company has complied with any other conditions specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the
Trustee a Company Request requesting such legal defeasance of the Securities of such series and an Officers’ Certificate stating that all conditions precedent with respect to such legal defeasance of the Securities of such series have been
complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company will be discharged from its obligations
under this Indenture and the Securities of such series to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series, the Company’s obligations under Sections 4.01 and 4.02 shall
terminate with respect to such Securities, and the entire indebtedness of the Company evidenced by such Securities shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Company may terminate any or all of its obligations under this Indenture with respect to Securities of a series and any or all of its obligations under the Securities of such
series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.01, to be applicable to the Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section 8.01 are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of the applicable trust arrangement shall provide for such redemption, and the Company
shall make such arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the money from Government Obligations through the
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Paying Agent and in accordance with this Indenture to the payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series with
respect to which the deposit was made. Money and securities held in trust are not subject to Article X.
SECTION 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company any excess money or Government Obligations (or proceeds therefrom) held by
them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the
Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the
Trustee and the Paying Agent with respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations deposited with respect to Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under
this Indenture with respect to the Securities of such series and under the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent
is permitted to apply all such money or Government Obligations in accordance with Section 8.01; provided, however, that if the Company has made any payment of principal of, premium (if any) or interest on or any Additional Amounts with
respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or the
Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION
9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities or waive any
provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01;
44
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any
security for, or to add any guarantees of or additional obligors on, any series of Securities;
(5) to comply with any
requirement in order to effect or maintain the qualification of this Indenture under the TIA;
(6) 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), or to surrender any right or power herein conferred upon the Company;
(7) to add any additional Events of
Default with respect to all or any series of the Securities (and, if any such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall
become effective only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that is adversely affected in any material respect by such change in or elimination of such
provision;
(9) to establish the form or terms of Securities of any series as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to Section 8.01; provided, however, that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities
in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and upon receipt
by the Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained.
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SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture with the consent
(including consents obtained in connection with a tender offer or exchange offer for Securities of any one or more series or all series or a solicitation of consents in respect of Securities of any one or more series or all series, provided
that in each case such offer or solicitation is made to all Holders of then outstanding Securities of each such series (but the terms of such offer or solicitation may vary from series to series)) of the Holders of at least a majority in principal
amount of the then outstanding Securities of all series affected by such amendment or supplement (acting as one class).
Upon the request
of the Company, accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06, the Trustee shall,
subject to Section 9.06, join with the Company in the execution of such amendment or supplemental indenture.
It shall not be
necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding Securities of one or more series or of all series (acting as one class)
may waive compliance in a particular instance by the Company with any provision of this Indenture with respect to Securities of such series (including waivers obtained in connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series, provided that in each case such offer or solicitation is made to all Holders of then outstanding Securities of such series (but the terms of such offer or solicitation may
vary from series to series)).
However, without the consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of interest, including default interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory sinking fund payment with respect to, or change the Stated
Maturity of, any Security or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of any Security or change the time at which any Security may or
shall be redeemed;
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(5) change any obligation of the Company to pay Additional Amounts with respect
to any Security;
(6) change the coin or currency or currencies (including composite currencies) in which any Security or
any premium, interest or Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for
the enforcement of any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Security pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of Securities necessary to waive compliance with certain provisions
of this Indenture pursuant to Section 6.04 or 6.07 or make any change in this sentence of Section 9.02;
(9)
waive a continuing Default or Event of Default in the payment of principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities;
(10) modify the provisions of this Indenture with respect to the subordination of any Security in a manner adverse to the
Holder thereof; or
(11) if applicable, make any change that materially and adversely affects the right to convert any
Security.
An amendment under this Section 9.02 may not make any change that adversely affects the rights under Article X of any
holder of an issue of Senior Debt unless the holders of the issue pursuant to its terms consent to the change.
A supplemental indenture
that 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.
The right of any Holder to participate in any consent required or sought pursuant to any provision of this Indenture (and the obligation of
the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as of a
date identified by the Company in a notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of each Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
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SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his or her Security or portion of a Security if the Trustee receives written notice of revocation before a date and time therefor identified by the Company in a notice furnished to such Holder in accordance with the terms of this
Indenture or, if no such date and time shall be identified, the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date (which need not comply with TIA § 316(c)) for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver or to take any other action under this Indenture. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of Securities required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holder’s Security.
SECTION 9.05 Notation on or Exchange of
Securities.
If an amendment or supplement changes the terms of an outstanding Security, the Company may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security at the request of the Company regarding the changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment or
supplement.
Securities of any series authenticated and delivered after the execution of any amendment or supplement 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 amendment or supplement.
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SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant to this Article if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment or supplement, the Trustee shall be entitled to receive, in addition to the documents
required by Section 11.04, and, subject to Section 7.01 hereof, shall be fully protected in relying upon, an Opinion of Counsel provided at the expense of the Company to the effect that such amendment or supplement is authorized or
permitted by this Indenture.
ARTICLE X
SUBORDINATION OF SECURITIES
SECTION 10.01
Securities Subordinated to Senior Debt.
The Company and each Holder of a Security of a series, by his acceptance thereof,
agree that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities of such series and (b) any other payment in respect of the Securities of such series,
including on account of the acquisition or redemption of Securities of such series by the Company, is subordinated, to the extent and in the manner provided in this Article X, to the prior payment in full of all Senior Debt of the Company, whether
outstanding at the date of this Indenture or thereafter created, incurred, assumed or guaranteed, and that these subordination provisions are for the benefit of the holders of Senior Debt.
This Article X shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the holders of Senior Debt, and such holders are made obligees hereunder and any one or more of them may enforce such provisions.
SECTION 10.02 No Payment on Securities in Certain Circumstances.
(a) Unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01, no payment shall be made by or
on behalf of the Company on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of any series or to acquire any Securities of such series (including any repurchases of Securities of
such series pursuant to the provisions thereof at the option of the Holder thereof) for cash or property (other than Junior securities), or on account of any redemption provisions of Securities of such series, in the event of default in payment of
any principal of, premium (if any) or interest on any Senior Debt of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration of maturity or otherwise (a “Payment
Default”), unless and until such Payment Default has been cured or waived or otherwise has ceased to exist or such Senior Debt has been discharged or paid in full.
(b) Unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01, no payment shall be made by or
on behalf of the Company on
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account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of any series or to acquire any Securities of such series (including any
repurchases of Securities of such series pursuant to the provisions thereof at the option of the Holder thereof) for cash or property (other than Junior securities), or on account of the redemption provisions of Securities of such series, in the
event of any event of default (other than a Payment Default) with respect to any Designated Senior Debt permitting the holders of such Designated Senior Debt (or a trustee or other representative on behalf of the holders thereof) to declare such
Designated Senior Debt due and payable prior to the date on which it would otherwise have become due and payable, upon written notice thereof to the Company and the Trustee by any holders of Designated Senior Debt (or a trustee or other
representative on behalf of the holders thereof) (a “Payment Blocking Notice”), unless and until such event of default has been cured or waived or otherwise has ceased to exist or such Designated Senior Debt has been discharged or paid in
full; provided, that such payments may not be prevented pursuant to this Section 10.02(b) for more than 179 days after an applicable Payment Blocking Notice has been received by the Trustee unless the Designated Senior Debt in respect of
which such event of default exists has been declared due and payable in its entirety, in which case no such payment may be made until such acceleration has been rescinded or annulled or such Designated Senior Debt has been discharged or paid in
full. Unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01, no event of default that existed or was continuing on the date of any Payment Notice (whether or not such event of default is on the
same issue of Designated Senior Debt) may be made the basis for the giving of a second Payment Blocking Notice, and only one such Payment Blocking Notice may be given in any 365-day period.
(c) In furtherance of the provisions of Section 10.01, in the event that, notwithstanding the foregoing provisions of this
Section 10.02, any payment or distribution of assets of the Company (other than Junior securities) shall be received by the Trustee, the Paying Agent or the Holders of Securities of any series at a time when such payment or distribution was
prohibited by the provisions of this Section 10.02, then, unless such payment or distribution is no longer prohibited by this Section 10.02, such payment or distribution (subject to the provisions of Section 10.07) shall be received
and held in trust by the Trustee, the Paying Agent or such Holder for the benefit of the holders of Senior Debt of the Company, and shall be paid or delivered by the Trustee, the Paying Agent or such Holders, as the case may be, to the holders of
Senior Debt of the Company remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Debt of the Company may have been
issued, ratably, according to the aggregate amounts remaining unpaid on account of such Senior Debt of the Company held or represented by each, for application to the payment of all Senior Debt in full after giving effect to all concurrent payments
and distributions to or for the holders of such Senior Debt.
SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Debt on Dissolution,
Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any dissolution, winding up, total or
partial liquidation or reorganization of the Company, whether voluntary or
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involuntary, in bankruptcy, insolvency, receivership or similar proceeding or upon assignment for the benefit of creditors:
(a) the holders of all Senior Debt of the Company shall first be entitled to receive payments in full before the Holders of
Securities of any series are entitled to receive any payment on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to Securities of such series (other than Junior securities);
(b) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities
(other than Junior securities), to which the Holders of Securities of any series or the Trustee on behalf of such Holders would be entitled, except for the provisions of this Article X, shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution directly to the holders of such Senior Debt or their representative, ratably according to the respective amounts of Senior Debt held or represented by each, to the extent necessary to make payment in full
of all such Senior Debt remaining unpaid after giving effect to all concurrent payments and distributions to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior securities), shall be received by the Trustee or the Holders of Securities of any series or any Paying Agent (or, if the Company or any Subsidiary is acting as the Paying Agent,
money for any such payment or distribution shall be segregated or held in trust) on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of such series before all Senior Debt of the
Company is paid in full, such payment or distribution (subject to the provisions of Section 10.07) shall be received and held in trust by the Trustee or such Holder or Paying Agent for the benefit of the holders of such Senior Debt, or their
respective representatives, ratably according to the respective amounts of such Senior Debt held or represented by each, to the extent necessary to make payment as provided herein of all such Senior Debt remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to or for the holders of such Senior Debt, but only to the extent that as to any holder of such Senior Debt, as promptly as practical following notice from the Trustee to the holders
of such Senior Debt that such prohibited payment has been received by the Trustee, Holder(s) or Paying Agent (or has been segregated as provided above), such holder (or a representative therefor) notifies the Trustee of the amounts then due and
owing on such Senior Debt, if any, held by such holder and only the amounts specified in such notices to the Trustee shall be paid to the holders of such Senior Debt.
SECTION 10.04 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt of the Company as provided herein, the Holders of the Securities of any series shall be
subrogated (to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions of this Article X) to the rights of the holders of such Senior Debt to receive payments or distributions of assets of the
Company applicable to the Senior Debt until all amounts owing on
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the Securities of such series shall be paid in full. For the purpose of such subrogation, no such payments or distributions to the holders of such Senior Debt by the Company, or by or on behalf
of the Holders of the Securities of such series by virtue of this Article X, which otherwise would have been made to such Holders shall, as between the Company and such Holders, be deemed to be payment by the Company or on account of such Senior
Debt, it being understood that the provisions of this Article X are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities of a series, on the one hand, and the holders of such Senior Debt, on the
other hand.
If any payment or distribution to which the Holders of the Securities would otherwise have been entitled but for the
provisions of this Article X shall have been applied, pursuant to the provisions of this Article X, to the payment of amounts payable under Senior Debt of the Company, then such Holders shall be entitled to receive from the holders of such Senior
Debt any payments or distributions received by such holders of Senior Debt in excess of the amount sufficient to pay all amounts payable under or in respect of such Senior Debt in full.
SECTION 10.05 Obligations of the Company Unconditional.
Nothing contained in this Article X or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company
and the Holders of the Securities of any series, the obligation of the Company, which is absolute and unconditional, to pay to such Holders the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities
of such series as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of such Holders and creditors of the Company other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article X, of the holders of Senior Debt in
respect of cash, property or securities of the Company received upon the exercise of any such remedy. Notwithstanding anything to the contrary in this Article X or elsewhere in this Indenture or in the Securities, upon any distribution of assets of
the Company referred to in this Article X, the Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to such Holders for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior Debt and other Debt 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 X so long as such court has been apprised of the provisions of, or the order, decree or certificate makes reference to, the provisions of this Article X.
SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until a Responsible Officer of the Trustee or any Paying Agent shall have received, no later than two Business Days prior to such payment, written notice thereof from the Company or from one or
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more holders of Senior Debt or from any representative thereof and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
SECTION 10.07 Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in accordance with Article VIII shall be for the sole benefit of Holders of
Securities of the series for the benefit of which such amounts were deposited, and, to the extent allocated for the payment of Securities of such series, shall not be subject to the subordination provisions of this Article X. Otherwise, any deposit
of assets with the Trustee or the Paying Agent (whether or not in trust) for the payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities of any series shall be subject to the provisions of
Sections 10.01, 10.02, 10.03 and 10.04; provided that if prior to two Business Days preceding the date on which by the terms of this Indenture any such assets may become distributable for any purpose (including, without limitation, the
payment of either principal of, premium (if any) or interest on or any Additional Amounts with respect to any Security), a Responsible Officer of the Trustee or such Paying Agent shall not have received with respect to such assets the written notice
provided for in Section 10.06, then the Trustee or such Paying Agent shall have full power and authority to receive such assets and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the
contrary that may be received by it on or after such date; and provided further that nothing contained in this Article X shall prevent the Company from making, or the Trustee from receiving or applying, any payment in connection with
the redemption of Securities of a series if the first publication of notice of such redemption (whether by mail or otherwise in accordance with this Indenture) has been made, and the Trustee has received such payment from the Company, prior to the
occurrence of any of the contingencies specified in Section 10.02 or 10.03.
SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce subordination
provisions contained in this Article X shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. The holders of Senior Debt may extend, renew, modify or amend the terms of the Senior Debt or any security
therefor and release, sell or exchange such security and otherwise deal freely with the Company, all without affecting the liabilities and obligations of the parties to this Indenture or the Holders of the Securities of any series.
SECTION 10.09 Trustee to Effectuate Subordination of Securities.
Each Holder of a Security of any series by his acceptance thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination provisions contained in this Article X and to protect the rights of the Holders of the Securities of such series pursuant to this Indenture, and appoints the Trustee
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his attorney-in-fact for such purpose, including, in the event of any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors of the Company), the filing of a claim for the unpaid balance of his Securities in the form required in said proceedings and cause said claim to be approved. If the Trustee does not file
a proper claim or proof of debt in the form required in such proceeding prior to 30 days before the expiration of the time to file such claim or claims, then the holders of the Senior Debt or their representative is hereby authorized to have the
right to file and is hereby authorized to file an appropriate claim for and on behalf of the Holders of Securities of such series. Nothing contained herein shall be deemed to authorize the Trustee or the holders of Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any Holder of Securities of any series any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or their representative to vote in respect of the claim of any Holder of the Securities of such series in any such proceeding.
SECTION 10.10 Right of Trustee to Hold Senior Debt.
The Trustee in its individual capacity shall be entitled to all of the rights set forth in this Article X in respect of any Senior Debt at any
time held by it to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11 Article X Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium (if any) or interest on the Securities of any series by reason of any
provision of this Article X shall not be construed as preventing the occurrence of a Default or an Event of Default under Section 6.01 with respect to Securities of such series or in any way prevent the Holders of the Securities of such series
from exercising any right hereunder other than the right to receive payment on the Securities of such series.
SECTION 10.12 No Fiduciary Duty of
Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall
not be liable to any such holders (other than for its willful misconduct or negligence) if it shall in good faith mistakenly pay over or distribute to the Holders of the Securities of any series or the Company or any other Person, cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of this Article X or otherwise. Nothing in this Section 10.12 shall affect the obligation of any other such Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Debt or their representative.
SECTION 10.13 Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article X shall in such case (unless the context shall otherwise require) be construed as
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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 X in addition to or in place of the
Trustee; provided, however, that this Section 10.13 shall not apply to the Company or any Subsidiary if the Company or such Subsidiary acts as Paying Agent.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by operation of TIA § 318(c), the imposed duties
shall control.
SECTION 11.02 Notices.
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex, facsimile or overnight air courier guaranteeing next day delivery, to the other’s address:
If to the Company:
Erin Energy
Corporation
1330 Post Oak Boulevard, Suite 2250
Houston, Texas 77056
Attention:
General Counsel
Telephone: (713) 965-5100
Facsimile: (713) 965-5128
If to the Trustee:
[ ]
[ ]
[ ]
Attn: [ ]
Telephone: [ ]
Facsimile: [ ]
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
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Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid, to
the Holder’s address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only when received.
If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including
without limitation notices to the Trustee or the Company by Holders, shall be in writing, except as otherwise set forth herein.
In case
by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 11.04 Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the
Company shall, if requested by the Trustee, furnish to the Trustee at the expense of the Company:
(1) an Officers’
Certificate (which shall include the statements set forth in Section 11.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
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SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(1) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as
to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of the Company or the Trustee, as such, shall not have any liability for any
obligations of the Company under the Securities or for any obligations of the Company or the Trustee under this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of Securities.
SECTION 11.09
Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THE LAWS OF THE STATE OF NEW YORK REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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SECTION 11.10 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 Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.12 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall, to the fullest extent permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 11.13 Counterpart Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 11.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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Exhibit 5.1
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ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS 77002-4995
TEL +1
713.229.1234 FAX +1
713.229.1522 BakerBotts.com |
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AUSTIN
BEIJING BRUSSELS
DALLAS DUBAI
HONG KONG HOUSTON |
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LONDON
MOSCOW NEW YORK
PALO ALTO RIO DE JANEIRO
RIYADH WASHINGTON |
July 28, 2015
083734.0103
Erin Energy Corporation
1330 Post Oak Blvd., Suite 2250
Houston, Texas 77056
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by Erin Energy
Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offering of securities that
may be issued and sold by the Company from time to time pursuant to Rule 415 under the Act, certain legal matters in connection with such securities are being passed upon for you by us. Such securities include (i) common stock, par value $0.001
per share (the “Common Stock”), of the Company, (ii) preferred stock, par value $0.001 per share (the “Preferred Stock”), of the Company, (iii) senior debt securities (the “Senior Debt Securities”) of the
Company, (iv) subordinated debt securities (the “Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”) of the Company and (v) warrants to purchase Common Stock, Preferred
Stock, Debt Securities or other securities (the “Warrants”). The Common Stock, Preferred Stock, Debt Securities and Warrants are collectively referred to herein as the “Securities.” At your request, this opinion is being
furnished to you for filing as Exhibit 5.1 to the Registration Statement.
Each series of Senior Debt Securities is to be issued pursuant
to an indenture to be entered into between the Company and the trustee thereunder (the “Senior Indenture”); and each series of Subordinated Debt Securities is to be issued pursuant to an indenture to be entered into between the Company and
the trustee thereunder (the “Subordinated Indenture” and, together with the Senior Indenture, the “Indentures”). Each Indenture is to be supplemented, in connection with the issuance of each such series, by a supplemental
indenture, officers’ certificate or other writing thereunder establishing the form and terms of such series.
In our capacity as your
counsel in the connection referred to above, we have examined originals, or copies certified or otherwise identified, of the Company’s Amended and Restated Certificate of Incorporation and Bylaws, each as amended to date (the “Charter
Documents”), the form of Senior Indenture (in the form to be filed as an exhibit to the Registration Statement), the form of Subordinated Indenture (in the form to be filed as an exhibit to the Registration Statement) and corporate records of
the Company, including minute books of the Company, as furnished to us by the Company, certificates of public officials and of representatives of the
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Company, statutes and other instruments and documents as a basis for the opinions hereinafter expressed. In giving such opinions, we have relied upon certificates of officers of the Company and
of public officials with respect to the accuracy of the material factual matters contained in such certificates.
In giving the opinions
below, we have assumed, without independent investigation, that the signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are
true and correct copies of the originals thereof and that all information submitted to us was accurate and complete.
In connection with
this opinion, we also have assumed that:
(a) the Registration Statement and any amendments thereto will have become
effective under the Act;
(b) a prospectus supplement will have been prepared and filed with the Commission describing the
Securities offered thereby;
(c) all Securities will be offered, issued and sold in compliance with applicable securities
laws and in the manner stated in the Registration Statement and the applicable prospectus supplement;
(d) the Board of
Directors of the Company or, to the extent permitted by the General Corporation Law of the State of Delaware and the Charter Documents, a duly constituted and acting committee thereof (such Board of Directors or committee thereof being hereinafter
referred to as the “Board”) will have taken all necessary corporate action to authorize the issuance of the Securities and any other Securities issuable on the conversion, exchange, redemption or exercise thereof, and to authorize the
terms of the offering and sale of such Securities and related matters;
(e) a definitive purchase, underwriting or similar
agreement with respect to any Securities being offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto (the “Purchase Agreement”);
(f) any securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will have been
duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise;
(g) all Securities, and any certificates in respect thereof, will be delivered either (i) in accordance with the
provisions of the applicable Purchase Agreement approved by the Board upon payment of the consideration therefor provided for therein or (ii) upon conversion, exchange, redemption or exercise of any other Security, in accordance with the terms
of such Security or the instrument governing such
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Security providing for such conversion, exchange, redemption or exercise as approved by the Board, for the consideration approved by the Board;
(h) in the case of shares of Common Stock or Preferred Stock, certificates representing such shares will have been duly
executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations will have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents; there will be
sufficient shares of Common Stock or Preferred Stock authorized under the Charter Documents and not otherwise issued or reserved for issuance; and the purchase price therefor payable to the Company or, if such shares are issuable on the conversion,
exchange, redemption or exercise of another Security, the consideration payable to the Company for such conversion, exchange, redemption or exercise will not be less than the par value of such shares, in the case of shares of Common Stock, or the
purchase price or consideration, as the case may be, as approved by the Board with respect to such issuance, in the case of shares of Preferred Stock;
(i) in the case of shares of Preferred Stock of any series, the Board will have taken all necessary corporate action to
designate and establish the terms of such series and will have caused a certificate of designations respecting such series to be prepared and filed with the Secretary of State of the State of Delaware;
(j) in the case of Warrants, the Board will have taken all necessary corporate action to authorize the creation of and the
terms of such Warrants and the issuance of the Securities to be issued pursuant thereto and to approve the warrant agreement relating thereto; such warrant agreement will have been duly executed and delivered by the Company and the warrant agent
thereunder appointed by the Company; neither such Warrants nor such warrant agreement will include any provision that is unenforceable; and such Warrants or certificates representing such Warrants will have been duly executed, countersigned,
registered and delivered in accordance with the provisions of such warrant agreement; and
(k) in the case of a series of
Senior Debt Securities or Subordinated Debt Securities, as the case may be, an indenture substantially in the form of the Subordinated Indenture will have been duly executed and delivered by the Company and the trustee thereunder; and
(l) in the case of a series of Senior Debt Securities or Subordinated Debt Securities, as the case may be, (i) the Board
will have taken all necessary corporate action to designate and establish the terms of such Debt Securities in accordance with the terms of the Indenture under which such Debt Securities will be issued, and such Debt Securities will not include any
provision that is unenforceable, (ii) the Indenture under which such Debt Securities will be issued will have become qualified under the Trust Indenture Act of 1939, as amended, and (iii) forms of Debt Securities complying with the terms
of the Indenture under which such Debt Securities will be issued and evidencing such Debt Securities will have been duly executed, authenticated, issued and delivered in accordance with the provisions of such Indenture.
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| Erin Energy Corporation |
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4
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July 28, 2015 |
On the basis of the foregoing, and subject to the assumptions, limitations and qualifications
set forth herein, we are of the opinion that:
1. The shares of Common Stock and Preferred Stock included in the Securities
will, when issued, have been duly authorized by all necessary corporate action on the part of the Company and validly issued and will be fully paid and nonassessable.
2. The Warrants included in the Securities will, when issued, have been duly authorized by all necessary corporate action on
the part of the Company and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof is subject to any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other laws relating to or affecting creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
3. The Debt Securities included in the Securities will, when issued, constitute
legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof is subject to any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance or other laws relating to or affecting creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
The opinions set forth above are limited in all respects to matters of the contract law of the State of New York, the General Corporation Law
of the State of Delaware and applicable federal law. 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 or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Baker Botts L.L.P.
Exhibit 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
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Three Months
Ended
March 31, |
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Years Ended December 31, |
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| (in thousands) |
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2015 |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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| Fixed charges: |
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| Interest expense, including debt issuance cost amortization |
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$ |
2,611 |
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$ |
4,383 |
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$ |
99 |
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$ |
117 |
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|
$ |
120 |
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$ |
— |
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| Capitalized interest |
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1,256 |
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283 |
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— |
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— |
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— |
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— |
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| Total fixed charges |
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3,867 |
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4,666 |
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99 |
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117 |
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120 |
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— |
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| Earnings available for fixed charges: |
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| Pre-tax income (loss) from continuing operations |
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$ |
(33,206 |
) |
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$ |
(96,308 |
) |
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$ |
(43,489 |
) |
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$ |
(32,706 |
) |
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$ |
(24,015 |
) |
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$ |
(230,376 |
)(3) |
| Add: |
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| Fixed charges |
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3,867 |
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4,666 |
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99 |
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117 |
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120 |
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— |
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| Less: |
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| Capitalized interest |
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(1,256 |
) |
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(283 |
) |
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— |
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— |
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— |
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— |
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| Non-controlling interest in pre-tax income of subsidiaries that have not incurred fixed charges |
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147 |
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246 |
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— |
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— |
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— |
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— |
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| Total earnings available for fixed charges |
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$ |
(30,448 |
) |
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($ |
91,679 |
) |
|
($ |
43,390 |
) |
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($ |
32,589 |
) |
|
$ |
(23,895 |
) |
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$ |
(230,376 |
) |
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| Ratio of earnings to fixed charges
(1)(2) |
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— |
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— |
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— |
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— |
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— |
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— |
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| (1) |
The Company had no preferred stock outstanding for any period presented, and accordingly, the ratio of earnings to combined fixed charges and preferred stock dividends is the same as the ratio of earnings to fixed
charges. |
| (2) |
Due to the Company’s net loss for the three months ended March 31, 2015 and for the years 2014, 2013, 2012, 2011 and 2010, its earnings were insufficient to cover its fixed charges by $34.3 million, $96.3 million,
$43.5 million, $32.7 million, $24.0 million and $230.4 million, respectively. |
| (3) |
Includes a non-cash asset impairment charge of $186.2 million to write down the value of the Company’s Nigeria oilfield assets to their estimated fair value. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated March 16, 2015 with respect to the consolidated financial statements and internal control over financial reporting
included in the Annual Report on Form 10-K for the year ended December 31, 2014 of Erin Energy Corporation (formerly CAMAC Energy Inc.), which are incorporated by reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned reports, and to the use of our name as it appears under the caption “Experts.”
|
| /s/ Grant Thornton LLP |
|
| Houston, Texas |
| July 28, 2015 |
Exhibit 23.3
DEGOLYER AND MACNAUGHTON
5001 SPRING VALLEY ROAD
SUITE 800 EAST
DALLAS, TEXAS 75244
July 28, 2015
Erin Energy Corporation
1330 Post Oak Boulevard
Suite 2550
Houston, Texas 77056
Ladies and Gentlemen:
We hereby consent to (a) the references to DeGolyer and MacNaughton contained under the section “Experts” in the Form S-3 (the
“Registration Statement”) of Erin Energy Corporation to be filed on or about July 28, 2015, with the United States Securities and Exchange Commission, and (b) the incorporation by reference into the Registration Statement of our third-party letter report dated February 6, 2015, containing our opinion on the proved reserves as of December 31, 2014, attributable to the interest owned by CAMAC Energy Inc. (now known as Erin Energy
Corporation) in the Oyo field, offshore Nigeria included in the CAMAC Energy Inc. annual report on Form 10-K filed on March 16, 2015.
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| Very truly yours, |
|
| /s/ DeGolyer and MacNaughton |
| DeGOLYER and MacNAUGHTON |
| Texas Registered Engineering Firm F-716 |
Erin Energy (CE) (USOTC:ERINQ)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
Erin Energy (CE) (USOTC:ERINQ)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024
