sv3
As
filed with the Securities and Exchange Commission on March 18, 2011
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Mitcham Industries, Inc.
(Exact name of registrant as specified in its charter)
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Texas
(State or other jurisdiction
of incorporation or organization)
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76-0210849
(I.R.S. Employer
Identification No.) |
8141 SH 75 South, P.O. Box 1175
Huntsville, Texas 77342
(936) 291-2277
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
Robert P. Capps
8141 SH 75 South, P.O. Box 1175
Huntsville, Texas 77342
(936) 291-2277
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Gillian A. Hobson
Vinson & Elkins L.L.P.
First City Tower
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Telephone: (713) 758-2222
Facsimile: (713) 615-5794
Approximate date of commencement of proposed sale to the public: From time to time after
the effective date of this registration statement as determined by market conditions and other
factors.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are being offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, please check the following
box. þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) 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. o
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. o
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. o
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. o
The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission acting pursuant to said 8(a) may determine.
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 the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Title of each class of |
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Amount to be |
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Offering Price per |
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Proposed Maximum |
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securities to be registered (1) |
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registered |
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Security |
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Offering Price |
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Amount of registration fee |
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Debt Securities (2)(3)(4) |
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Guarantees of Debt Securities (4) |
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Common Stock, par value $0.01 per share |
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Preferred Stock, par value $1.00 per share (2) |
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Warrants (2) |
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Total |
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N/A |
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N/A |
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$60,000,000(5)(6) |
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$6,966(6) |
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(1) |
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Any securities registered hereunder may be sold separately or as units with other securities
registered hereunder. |
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(2) |
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This registration statement also covers an indeterminate amount of securities that may be
issued in exchange for, or upon conversion or exercise of, the Debt Securities, Preferred
Stock or Warrants being registered. |
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(3) |
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The aggregate principal amount of the Debt Securities may be increased if any Debt Securities
are issued at an original issue discount, in which case the gross proceeds received will be
equal to the amount being registered above. Any offering of Debt Securities denominated in
other than United States dollars will be treated as the United States-dollar equivalent
calculated using the exchange rate that is applicable at the time of initial offering. The
aggregate initial offering price of all securities being registered under this registration
statement will not exceed $60 million (or the foreign-currency or composite-currency
equivalents). |
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If a series of debt securities is guaranteed, such series will be guaranteed by all of the
domestic subsidiaries of Mitcham Industries, Inc. Pursuant to Rule 457(n), no separate fee is
payable with respect to the guarantees of the debt securities being registered. |
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(5) |
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Rule 457(o) permits the registration statement fee to be calculated on the basis of the
maximum offering price of all of the securities listed. Therefore, the table does not specify
information as to the amount to be registered by each class or the proposed maximum offering
price per security. |
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(6) |
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No separate consideration will be received for any securities being registered that
are issued in exchange for, or upon conversion or exercise of, the Debt Securities, Preferred
Stock or Warrants being registered hereunder. |
The following are co-registrants that may guarantee the debt securities:
Seamap Inc.
(Exact Name of Registrant As Specified In Its Charter)
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Texas
(State or Other Jurisdiction of Incorporation
or Organization)
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76-0586173
(I.R.S. Employer Identification
Number) |
Drilling Services, Inc.
(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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30-0018788
(I.R.S. Employer Identification
Number) |
The information in this prospectus is not complete and may be changed. This prospectus is not
an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the
offer or sale is not permitted. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective.
Subject to completion, dated March 18, 2011
Prospectus
$60,000,000
Debt Securities
Common Stock
Preferred Stock
Warrants
We may offer and sell the securities listed above from time to time in one or more
offerings in one or more classes or series.
The aggregate initial offering price of the securities that we will offer will not exceed
$60,000,000. We will offer the securities in amounts, at prices and on terms to be determined by
market conditions at the time of the offerings. The securities may be offered separately or
together in any combination or as a separate series.
This prospectus provides you with a general description of the securities that may be offered.
Each time securities are offered, we will provide a prospectus supplement and attach it to this
prospectus. The prospectus supplement will contain more specific information about the offering
and the terms of the securities being offered. A prospectus supplement may also add, update or
change information contained in this prospectus. This prospectus may not be used to offer or sell
securities without a prospectus supplement describing the method and terms of the offering.
We may sell these securities directly or through agents, underwriters or dealers, or through a
combination of these methods. See Plan of Distribution. The prospectus supplement will list any
agents, underwriters or dealers that may be involved and the compensation they will receive. The
prospectus supplement will also show you the total amount of money that we will receive from
selling the securities being offered, after the expenses of the offering. You should carefully
read this prospectus and any accompanying prospectus supplement, together with the documents we
incorporate by reference, before you invest in any of our securities.
Investing in any of our securities involves risk. Please read carefully the information
included and incorporated by reference in this prospectus and in any applicable prospectus
supplement for a discussion of the factors you should consider before deciding to purchase our
securities. See Risk Factors beginning on page 2 of this prospectus.
Our common stock is traded on The Nasdaq Global Market under the symbol MIND.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2011.
In making your investment decision, you should rely only on the information contained or
incorporated by reference in this prospectus. We have not authorized anyone to provide you with
any other information. If anyone provides you with different or inconsistent information, you
should not rely on it.
You should not assume that the information contained in this prospectus is accurate as of any
date other than the date on the front cover of this prospectus. You should not assume that the
information contained in the documents incorporated by reference in this prospectus is accurate as
of any date other than the respective dates of those documents. Our business, financial condition,
results of operations and prospects may have changed since those dates.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, using a shelf registration or continuous offering process. Using
this process, we may offer up to $60,000,000 of any combination of the securities described in this
prospectus in one or more offerings. In this prospectus (including the documents incorporated by
reference), we have summarized material provisions of contracts and other documents, which are
included as exhibits to the registration statement. For a complete description of their terms, you
should review the full text of the documents.
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 you with a prospectus supplement
containing specific information about the terms of the securities being offered. That prospectus
supplement may include additional risk factors or other considerations applicable to that offering.
A prospectus supplement may also add, update or change information in this prospectus. If there
is any inconsistency between the information in this prospectus and any prospectus supplement, you
should rely on the information in the prospectus supplement. You should read both this prospectus
and any prospectus supplement together with the additional information described under the heading
Where You Can Find More Information.
This prospectus is neither an offer to sell nor a solicitation of an offer to buy securities
where an offer or solicitation would be unlawful. You should not assume the information in this
prospectus or a prospectus supplement is accurate as of any date other than the date on the front
of the documents.
Except as otherwise set forth in this prospectus, the Company, we, our, and us refer
to Mitcham Industries, Inc. and its consolidated subsidiaries.
MITCHAM INDUSTRIES, INC.
We are engaged directly and through our wholly owned subsidiaries in the leasing of seismic
equipment to the oil and gas industry throughout the world. We are also engaged in the sale of new
and used seismic equipment and in the design, manufacture and sale of marine seismic equipment. We
operate our business in two segments, equipment leasing and equipment manufacturing. We lease and
sell geophysical and other equipment used primarily by seismic data acquisition contractors to
perform seismic data acquisition surveys on land, in transition zones (marsh and shallow water
areas) and marine areas. We conduct our operations on a worldwide basis and believe that we are the
worlds largest independent lessor of seismic equipment.
We were incorporated in Texas in 1987. We are a publicly traded corporation with principal
executive offices located at 8141 SH 75 South, P.O. Box 1175, Huntsville, Texas 77342. Our common
stock is traded on The NASDAQ Global Select Market under the symbol MIND.
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RISK FACTORS
An investment in our securities involves a significant degree of risk. Before you invest in
our securities you should carefully consider those risk factors included in our most recent Annual
Report on Form 10-K, any Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K, which
are incorporated herein by reference, and those risk factors that may be included in any applicable
prospectus supplement, together with all of the other information included in this prospectus, any
prospectus supplement and the documents we incorporate by reference, in evaluating an investment in
our securities. If any of the risks discussed in the foregoing documents were to occur, our
business, financial condition, results of operations and cash flows could be materially adversely
affected. Please read Cautionary Statement Regarding Forward-Looking Statements.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in or incorporated by reference in this prospectus, our filings
with the SEC, which are incorporated by reference herein, and our public releases, including, but
not limited to, information regarding the status and progress of our operating activities, the
plans and objectives of our management, assumptions regarding our future performance and plans, our
liquidity and capital resources, and any financial guidance provided therein are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. The words believe, may, will, estimate, continue,
anticipate, intend, budget, predict, project, expect and similar expressions identify
these forward-looking statements, although not all forward-looking statements contain these
identifying words. These forward-looking statements are made subject to certain risks and
uncertainties that could cause actual results to differ materially from those stated. Risks and
uncertainties that could cause or contribute to such differences include, without limitation, those
discussed in Risk Factors in our Annual Report on Form 10-K for the year ended January 31, 2010
and our subsequent SEC filings, as well as those factors summarized below:
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our future financial position and results of operations; |
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international and economic instability; |
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the effect of fluctuations in oil and natural gas prices on exploration activities; |
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defaults by customers on amounts due to us; |
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planned capital expenditures; |
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our business strategy and other plans for future operations; |
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the future mix of revenues and business; |
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our relationship with suppliers; |
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our ability to retain customers; |
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our liquidity and access to capital; |
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the effect of uncertainty in financial markets on our customers and our ability to
obtain financing; |
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the effect of seasonality on our business; |
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possible impairment of our long-lived assets; |
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future demands for our services; and |
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general conditions in the energy industry and seismic service industry. |
We largely base these forward-looking statements on our expectations and beliefs concerning
future events, which reflect estimates and assumptions made by our management. These estimates and
assumptions reflect our best judgment based on currently known market conditions and other factors
relating to our operations and business environment, all of which are difficult to predict and many
of which are beyond our control.
Although we believe our estimates and assumptions to be reasonable, they are inherently
uncertain and involve a number of risks and uncertainties that are beyond our control. Our
assumptions about future events may prove to be inaccurate. We caution you that the
forward-looking statements contained in this prospectus are not guarantees of future performance,
and we cannot assure you that those statements will be realized or the forward-looking events and
circumstances will occur. Actual results may differ materially from those anticipated or implied
in the forward-looking statements due to the factors listed in the section entitled Risk Factors
included in our Annual Report on Form 10-K for the year ended January 31, 2010 and our subsequent
SEC filings, which are incorporated by
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reference herein. All forward-looking statements speak only as of the date of this
prospectus, or as of the date of the document incorporated by reference herein, as applicable. We
do not intend to publicly update or revise any forward-looking statements as a result of new
information, future events or otherwise, except as required by law. These cautionary statements
qualify all forward-looking statements attributable to us or persons acting on our behalf.
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USE OF PROCEEDS
Unless we inform you otherwise in a prospectus supplement, we intend to use the net proceeds
from the sale of the securities offered hereby for general corporate purposes, including repayment
or refinancing of debt, acquisitions, working capital, capital expenditures, and repurchases and
redemptions of securities. Pending any specific application, we may initially invest funds in
short term marketable securities or apply them to the reduction of other short term indebtedness.
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RATIO OF EARNINGS TO FIXED CHARGES
If we offer debt securities and/or preference equity securities under this prospectus, then we
will, at that time, provide a ratio of earnings to fixed charges and/or ratio of combined fixed
charges and preference dividends to earnings, respectively, in the applicable prospectus supplement
for such offering.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities (Senior Debt Securities) or
our subordinated debt securities (Subordinated Debt Securities). The Senior Debt Securities and
the Subordinated Debt Securities will be issued under separate indentures among us, the Subsidiary
Guarantors of such Debt Securities, if any, and a trustee to be determined (the Trustee). Senior
Debt Securities will be issued under a Senior Indenture and Subordinated Debt Securities will be
issued under a Subordinated Indenture. Together, the Senior Indenture and the Subordinated
Indenture are called Indentures.
The Debt Securities may be issued from time to time in one or more series. The particular
terms of each series that are offered by a prospectus supplement will be described in the
prospectus supplement.
Unless the Debt Securities are guaranteed by our subsidiaries as described below, the rights
of Mitcham Industries, Inc. and our creditors, including holders of the Debt Securities, to
participate in the assets of any subsidiary upon the latters liquidation or reorganization, will
be subject to the prior claims of the subsidiarys creditors, except to the extent that we may
ourself be a creditor with recognized claims against such subsidiary.
We have summarized selected provisions of the Indentures below. The summary is not complete.
The form of each Indenture has been filed with the SEC as an exhibit to the registration statement
of which this prospectus is a part, and you should read the Indentures for provisions that may be
important to you. Capitalized terms used in the summary have the meanings specified in the
Indentures.
General
The Indentures provide that Debt Securities in separate series may be issued thereunder from
time to time without limitation as to aggregate principal amount. We may specify a maximum
aggregate principal amount for the Debt Securities of any series. We will determine the terms and
conditions of the Debt Securities, including the maturity, principal and interest, but those terms
must be consistent with the Indenture. The Debt Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment to the prior payment
in full of all of our Senior Debt (as defined) as described under Subordination of Subordinated
Debt Securities and in the prospectus supplement applicable to any Subordinated Debt Securities.
If the prospectus supplement so indicates, the Debt Securities will be convertible into our common
stock.
If specified in the prospectus supplement respecting a particular series of Debt Securities,
one or more subsidiary guarantors identified therein (each a Subsidiary Guarantor), will fully
and unconditionally guarantee (the Subsidiary Guarantee) that series as described under
Subsidiary Guarantee and in the prospectus supplement. Each Subsidiary Guarantee will be an
unsecured obligation of the Subsidiary Guarantor. A Subsidiary Guarantee of Subordinated Debt
Securities will be subordinated to the Senior Debt of the Subsidiary Guarantor on the same basis as
the Subordinated Debt Securities are subordinated to our Senior Debt.
The applicable prospectus supplement will set forth the price or prices at which the Debt
Securities to be issued will be offered for sale and will describe the following terms of such Debt
Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or Subordinated Debt Securities
and, if Subordinated Debt Securities, the related subordination terms;
(3) whether any Subsidiary Guarantor will provide a Subsidiary Guarantee of the Debt
Securities;
(4) any limit on the aggregate principal amount of the Debt Securities;
(5) each date on which the principal of the Debt Securities will be payable;
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(6) the interest rate that the Debt Securities will bear and the interest payment dates for the Debt Securities;
(7) each place where payments on the Debt Securities will be payable;
(8) any terms upon which the Debt Securities may be redeemed, in whole or in part, at our
option;
(9) any sinking fund or other provisions that would obligate us to redeem or otherwise
repurchase the Debt Securities;
(10) the portion of the principal amount, if less than all, of the Debt Securities that will
be payable upon declaration of acceleration of the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default;
(13) whether the Debt Securities are convertible into our common stock and, if so, the terms
and conditions upon which conversion will be effected, including the initial conversion price or
conversion rate and any adjustments thereto and the conversion period;
(14) any addition to or change in the covenants in the Indenture applicable to the Debt
Securities; and
(15) any other terms of the Debt Securities not inconsistent with the provisions of the
Indenture.
Debt Securities, including any Debt Securities that provide for an amount less than the
principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof (Original Issue Discount Securities), may be sold at a substantial discount below their
principal amount. Special U.S. federal income tax considerations applicable to Debt Securities
sold at an original issue discount may be described in the applicable prospectus supplement. In
addition, special U.S. federal income tax or other considerations applicable to any Debt Securities
that are denominated in a currency or currency unit other than U.S. dollars may be described in the
applicable prospectus supplement.
Subordination of Subordinated Debt Securities
The indebtedness evidenced by the Subordinated Debt Securities will, to the extent set forth
in the Subordinated Indenture with respect to each series of Subordinated Debt Securities, be
subordinate in right of payment to the prior payment in full of all of our Senior Debt, including
the Senior Debt Securities, and it may also be senior in right of payment to all of our
Subordinated Debt. The prospectus supplement relating to any Subordinated Debt Securities will
summarize the subordination provisions of the Subordinated Indenture applicable to that series
including:
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the applicability and effect of such provisions upon any payment or
distribution respecting that series following any liquidation, dissolution or other
winding-up, or any assignment for the benefit of creditors or other marshalling of assets or
any bankruptcy, insolvency or similar proceedings; |
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the applicability and effect of such provisions in the event of specified
defaults with respect to any Senior Debt, including the circumstances under which and the
periods during which we will be prohibited from making payments on the Subordinated Debt
Securities; and |
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the definition of Senior Debt applicable to the Subordinated Debt Securities of
that series and, if the series is issued on a senior subordinated basis, the definition of
Subordinated Debt applicable to that series. |
The prospectus supplement will also describe as of a recent date the approximate amount of
Senior Debt to which the Subordinated Debt Securities of that series will be subordinated.
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The failure to make any payment on any of the Subordinated Debt Securities by reason of the
subordination provisions of the Subordinated Indenture described in the prospectus supplement will
not be construed as preventing the occurrence of an Event of Default with respect to the
Subordinated Debt Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to payments in respect of
the Subordinated Debt Securities from a defeasance trust established in connection with any legal
defeasance or covenant defeasance of the Subordinated Debt Securities as described under Legal
Defeasance and Covenant Defeasance.
Subsidiary Guarantee
If specified in the prospectus supplement, one or more of the Subsidiary Guarantors will
guarantee the Debt Securities of a series. Unless otherwise indicated in the prospectus
supplement, the following provisions will apply to the Subsidiary Guarantee of the Subsidiary
Guarantor.
Subject to the limitations described below and in the prospectus supplement, one or more of
the Subsidiary Guarantors will jointly and severally, fully and unconditionally guarantee the
punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all our
payment obligations under the Indentures and the Debt Securities of a series, whether for principal
of, premium, if any, or interest on the Debt Securities or otherwise (all such obligations
guaranteed by a Subsidiary Guarantor being herein called the Guaranteed Obligations). The
Subsidiary Guarantors will also pay all expenses (including reasonable counsel fees and expenses)
incurred by the applicable Trustee in enforcing any rights under a Subsidiary Guarantee with
respect to a Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary Guarantors Subsidiary Guarantee
will be subordinated in right of payment to the Senior Debt of such Subsidiary Guarantor on the
same basis as the Subordinated Debt Securities are subordinated to our Senior Debt. No payment
will be made by any Subsidiary Guarantor under its Subsidiary Guarantee during any period in which
payments by us on the Subordinated Debt Securities are suspended by the subordination provisions of
the Subordinated Indenture.
Each Subsidiary Guarantee will be limited in amount to an amount not to exceed the maximum
amount that can be guaranteed by the Subsidiary Guarantor without rendering such Subsidiary
Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full of all the applicable
Debt Securities (or such Debt Securities are otherwise satisfied and discharged in accordance with
the provisions of the applicable Indenture) or (b) released as described in the following
paragraph;
(2) be binding upon each Subsidiary Guarantor; and
(3) inure to the benefit of and be enforceable by the applicable Trustee, the Holders and
their successors, transferees and assigns.
In the event that (a) a Subsidiary Guarantor ceases to be a Subsidiary, (b) either legal
defeasance or covenant defeasance occurs with respect to the series or (c) all or substantially all
of the assets or all of the Capital Stock of such Subsidiary Guarantor is sold, including by way of
sale, merger, consolidation or otherwise, such Subsidiary Guarantor will be released and discharged
of its obligations under its Subsidiary Guarantee without any further action required on the part
of the Trustee or any Holder, and no other person acquiring or owning the assets or Capital Stock
of such Subsidiary Guarantor will be required to enter into a Subsidiary Guarantee. In addition,
the prospectus supplement may specify additional circumstances under which a Subsidiary Guarantor
can be released from its Subsidiary Guarantee.
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Form, Exchange and Transfer
The Debt Securities of each series will be issuable only in fully registered form, without
coupons, and, unless otherwise specified in the applicable prospectus supplement, only in
denominations of $1,000 and integral multiples thereof.
At the option of the Holder, subject to the terms of the applicable Indenture and the
limitations applicable to Global Securities, Debt Securities of each series will be exchangeable
for other Debt Securities of the same series of any authorized denomination and of a like tenor and
aggregate principal amount.
Subject to the terms of the applicable Indenture and the limitations applicable to Global
Securities, Debt Securities may be presented for exchange as provided above or for registration of
transfer (duly endorsed or with the form of transfer endorsed thereon duly executed) at the office
of the Security Registrar or at the office of any transfer agent designated by us for such purpose.
No service charge will be made for any registration of transfer or exchange of Debt Securities,
but we may require payment of a sum sufficient to cover any tax or other governmental charge
payable in that connection. Such transfer or exchange will be effected upon the Security Registrar
or such transfer agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request. The Security Registrar and any other transfer agent
initially designated by us for any Debt Securities will be named in the applicable prospectus
supplement. We may at any time designate additional transfer agents or rescind the designation of
any transfer agent or approve a change in the office through which any transfer agent acts, except
that we will be required to maintain a transfer agent in each Place of Payment for the Debt
Securities of each series.
If the Debt Securities of any series (or of any series and specified tenor) are to be redeemed
in part, we will not be required to (1) issue, register the transfer of or exchange any Debt
Security of that series (or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption of
any such Debt Security that may be selected for redemption and ending at the close of business on
the day of such mailing or (2) register the transfer of or exchange any Debt Security so selected
for redemption, in whole or in part, except the unredeemed portion of any such Debt Security being
redeemed in part.
Global Securities
Some or all of the Debt Securities of any series may be represented, in whole or in part, by
one or more Global Securities that will have an aggregate principal amount equal to that of the
Debt Securities they represent. Each Global Security will be registered in the name of a
Depositary or its nominee identified in the applicable prospectus supplement, will be deposited
with such Depositary or nominee or its custodian and will bear a legend regarding the restrictions
on exchanges and registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the applicable Indenture.
Notwithstanding any provision of the Indentures or any Debt Security described in this
prospectus, no Global Security may be exchanged in whole or in part for Debt Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or unable to continue as Depositary
for such Global Security or has ceased to be qualified to act as such as required by the applicable
Indenture, and in either case we fail to appoint a successor Depositary within 90 days;
(2) an Event of Default with respect to the Debt Securities represented by such Global
Security has occurred and is continuing and the Trustee has received a written request from the
Depositary to issue certificated Debt Securities;
(3) subject to the rules of the Depositary, we shall have elected to terminate the book-entry
system through the Depositary; or
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(4) other circumstances exist, in addition to or in lieu of those described above, as may be
described in the applicable prospectus supplement.
All certificated Debt Securities issued in exchange for a Global Security or any portion
thereof will be registered in such names as the Depositary may direct.
As long as the Depositary, or its nominee, is the registered holder of a Global Security, the
Depositary or such nominee, as the case may be, will be considered the sole owner and Holder of
such Global Security and the Debt Securities that it represents for all purposes under the Debt
Securities and the applicable Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have such Global
Security or any Debt Securities that it represents registered in their names, will not receive or
be entitled to receive physical delivery of certificated Debt Securities in exchange for those
interests and will not be considered to be the owners or Holders of such Global Security or any
Debt Securities that it represents for any purpose under the Debt Securities or the applicable
Indenture. All payments on a Global Security will be made to the Depositary or its nominee, as the
case may be, as the Holder of the security. The laws of some jurisdictions may require that some
purchasers of Debt Securities take physical delivery of such Debt Securities in certificated form.
These laws may impair the ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to institutions that
have accounts with the Depositary or its nominee (participants) and to persons that may hold
beneficial interests through participants. In connection with the issuance of any Global Security,
the Depositary will credit, on its book-entry registration and transfer system, the respective
principal amounts of Debt Securities represented by the Global Security to the accounts of its
participants. Ownership of beneficial interests in a Global Security will be shown only on, and
the transfer of those ownership interests will be effected only through, records maintained by the
Depositary (with respect to participants interests) or any such participant (with respect to
interests of Persons held by such participants on their behalf). Payments, transfers, exchanges
and other matters relating to beneficial interests in a Global Security may be subject to various
policies and procedures adopted by the Depositary from time to time. None of us, the Subsidiary
Guarantors, the Trustees or the agents of us, the Subsidiary Guarantors or the Trustees will have
any responsibility or liability for any aspect of the Depositarys or any participants records
relating to, or for payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial interests.
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment of interest on a
Debt Security on any Interest Payment Date will be made to the Person in whose name such Debt
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Unless otherwise indicated in the applicable prospectus supplement, principal of and any
premium and interest on the Debt Securities of a particular series will be payable at the office of
such Paying Agent or Paying Agents as we may designate for such purpose from time to time, except
that at our option payment of any interest on Debt Securities in certificated form may be made by
check mailed to the address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable prospectus supplement, the corporate trust
office of the Trustee under the Senior Indenture in The City of New York will be designated as sole
Paying Agent for payments with respect to Senior Debt Securities of each series, and the corporate
trust office of the Trustee under the Subordinated Indenture in The City of New York will be
designated as the sole Paying Agent for payment with respect to Subordinated Debt Securities of
each series. Any other Paying Agents initially designated by us for the Debt Securities of a
particular series will be named in the applicable prospectus supplement. We may at any time
designate additional Paying Agents or rescind the designation of any Paying Agent or approve a
change in the office through which any Paying Agent acts, except that we will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of a particular series.
All money paid by us to a Paying Agent for the payment of the principal of or any premium or
interest on any Debt Security which remains unclaimed at the end of two years after such principal,
premium or interest has become due and payable will be repaid to us, and the Holder of such Debt
Security thereafter may look only to us for payment.
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Consolidation, Merger and Sale of Assets
Unless otherwise specified in the prospectus supplement, we may not consolidate with or merge
into, or transfer, lease or otherwise dispose of all or substantially all of our assets to, any
Person (a successor Person), and may not permit any Person to consolidate with or merge into us,
unless:
(1) the successor Person (if not us) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any domestic jurisdiction and assumes our
obligations on the Debt Securities and under the Indentures;
(2) immediately before and after giving pro forma effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing; and
(3) several other conditions, including any additional conditions with respect to any
particular Debt Securities specified in the applicable prospectus supplement, are met.
The successor Person (if not us) will be substituted for us under the applicable Indenture
with the same effect as if it had been an original party to such Indenture, and, except in the case
of a lease, we will be relieved from any further obligations under such Indenture and the Debt
Securities.
Events of Default
Unless otherwise specified in the prospectus supplement, each of the following will constitute
an Event of Default under the applicable Indenture with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt Security of that series when due,
whether or not, in the case of Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that series when due, continued for
30 days, whether or not, in the case of Subordinated Debt Securities, such payment is prohibited by
the subordination provisions of the Subordinated Indenture;
(3) failure to deposit any sinking fund payment, when due, in respect of any Debt Security of
that series, whether or not, in the case of Subordinated Debt Securities, such deposit is
prohibited by the subordination provisions of the Subordinated Indenture;
(4) failure to perform or comply with the provisions described under Consolidation, Merger
and Sale of Assets;
(5) failure to perform any of our other covenants in such Indenture (other than a covenant
included in such Indenture solely for the benefit of a series other than that series), continued
for 60 days after written notice has been given by the applicable Trustee, or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series, as provided in
such Indenture;
(6) any Debt of ourself, any Significant Subsidiary or, if a Subsidiary Guarantor has
guaranteed the series, each such Subsidiary Guarantor, is not paid within any applicable grace
period after final maturity or is accelerated by its holders because of a default and the total
amount of such Debt unpaid or accelerated exceeds $20.0 million;
(7) any judgment or decree for the payment of money in excess of $20.0 million is entered
against us, any Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the series,
such Subsidiary Guarantor, remains outstanding for a period of 60 consecutive days following entry
of such judgment and is not discharged, waived or stayed;
(8) certain events of bankruptcy, insolvency or reorganization affecting us, any Significant
Subsidiary or, if a Subsidiary Guarantor has guaranteed the series, such Subsidiary Guarantor; and
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(9) if any Subsidiary Guarantor has guaranteed such series, the Subsidiary Guarantee of any
such Subsidiary Guarantor is held by a final non-appealable order or judgment of a court of
competent jurisdiction to be unenforceable or invalid or ceases for any reason to be in full force
and effect (other than in accordance with the terms of the applicable Indenture) or any Subsidiary
Guarantor or any Person acting on behalf of any Subsidiary Guarantor denies or disaffirms such
Subsidiary Guarantors obligations under its Subsidiary Guarantee (other than by reason of a
release of such Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of
the applicable Indenture).
If an Event of Default (other than an Event of Default with respect to Mitcham Industries,
Inc. described in clause (8) above) with respect to the Debt Securities of any series at the time
Outstanding occurs and is continuing, either the applicable Trustee or the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of that series by notice as provided in the
Indenture may declare the principal amount of the Debt Securities of that series (or, in the case
of any Debt Security that is an Original Issue Discount Debt Security, such portion of the
principal amount of such Debt Security as may be specified in the terms of such Debt Security) to
be due and payable immediately, together with any accrued and unpaid interest thereon. If an Event
of Default with respect to Mitcham Industries, Inc. described in clause (8) above with respect to
the Debt Securities of any series at the time Outstanding occurs, the principal amount of all the
Debt Securities of that series (or, in the case of any such Original Issue Discount Security, such
specified amount) will automatically, and without any action by the applicable Trustee or any
Holder, become immediately due and payable, together with any accrued and unpaid interest thereon.
After any such acceleration and its consequences, but before a judgment or decree based on
acceleration, the Holders of a majority in principal amount of the Outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such acceleration if all Events of
Default with respect to that series, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the applicable Indenture. For
information as to waiver of defaults, please read Modification and Waiver below.
Subject to the provisions of the Indentures relating to the duties of the Trustees in case an
Event of Default has occurred and is continuing, no Trustee will be under any obligation to
exercise any of its rights or powers under the applicable Indenture at the request or direction of
any of the Holders, unless such Holders have offered to such Trustee reasonable security or
indemnity. Subject to such provisions for the indemnification of the Trustees, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series.
No Holder of a Debt Security of any series will have any right to institute any proceeding
with respect to the applicable Indenture, or for the appointment of a receiver or a trustee, or for
any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under the applicable Indenture written
notice of a continuing Event of Default with respect to the Debt Securities of that series;
(2) the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that
series have made written request, and such Holder or Holders have offered reasonable security or
indemnity, to the Trustee to institute such proceeding as trustee; and
(3) the Trustee has failed to institute such proceeding, and has not received from the Holders
of a majority in principal amount of the Outstanding Debt Securities of that series a direction
inconsistent with such request, within 60 days after such notice, request and offer.
However, such limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on such Debt Security on
or after the applicable due date specified in such Debt Security or, if applicable, to convert such
Debt Security.
We will be required to furnish to each Trustee annually a statement by certain of our officers
as to whether or not we, to their knowledge, are in default in the performance or observance of any
of the terms, provisions and conditions of the applicable Indenture and, if so, specifying all such
known defaults.
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Modification and Waiver
We may modify or amend an Indenture without the consent of any holders of the Debt Securities
in certain circumstances, including:
(1) to evidence the succession under the Indenture of another Person to us or any Subsidiary
Guarantor and to provide for its assumption of our or such Subsidiary Guarantors obligations to
holders of Debt Securities;
(2) to make any changes that would add any additional covenants of us or the Subsidiary
Guarantors for the benefit of the holders of Debt Securities or that do not adversely affect the
rights under the Indenture of the Holders of Debt Securities in any material respect;
(3) to add any additional Events of Default;
(4) to provide for uncertificated notes in addition to or in place of certificated notes;
(5) to secure the Debt Securities;
(6) to establish the form or terms of any series of Debt Securities;
(7) to evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee;
(8) to cure any ambiguity, defect or inconsistency;
(9) to add Subsidiary Guarantors; or
(10) in the case of any Subordinated Debt Security, to make any change in the subordination
provisions that limits or terminates the benefits applicable to any Holder of Senior Debt.
Other modifications and amendments of an Indenture may be made by us, the Subsidiary
Guarantors, if applicable, and the applicable Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment; provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Debt Security;
(2) reduce the principal amount of, or any premium or interest on, any Debt Security;
(3) reduce the amount of principal of an Original Issue Discount Security or any other Debt
Security payable upon acceleration of the Maturity thereof;
(4) change the place or currency of payment of principal of, or any premium or interest on,
any Debt Security;
(5) impair the right to institute suit for the enforcement of any payment due on or any
conversion right with respect to any Debt Security;
(6) modify the subordination provisions in the case of Subordinated Debt Securities, or modify
any conversion provisions, in either case in a manner adverse to the Holders of the Subordinated
Debt Securities;
(7) except as provided in the applicable Indenture, release the Subsidiary Guarantee of a
Subsidiary Guarantor;
(8) reduce the percentage in principal amount of Outstanding Debt Securities of any series,
the consent of whose Holders is required for modification or amendment of the Indenture;
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(9) reduce the percentage in principal amount of Outstanding Debt Securities of any series
necessary for waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults;
(10) modify such provisions with respect to modification, amendment or waiver; or
(11) following the making of an offer to purchase Debt Securities from any Holder that has
been made pursuant to a covenant in such Indenture, modify such covenant in a manner adverse to
such Holder.
The Holders of not less than a majority in principal amount of the Outstanding Debt Securities
of any series may waive compliance by us with certain restrictive provisions of the applicable
Indenture. The Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may waive any past default under the applicable Indenture, except a
default in the payment of principal, premium or interest and certain covenants and provisions of
the Indenture which cannot be amended without the consent of the Holder of each Outstanding Debt
Security of such series.
Each of the Indentures provides that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities have given or taken any direction, notice,
consent, waiver or other action under such Indenture as of any date:
(1) the principal amount of an Original Issue Discount Security that will be deemed to be
Outstanding will be the amount of the principal that would be due and payable as of such date upon
acceleration of maturity to such date;
(2) if, as of such date, the principal amount payable at the Stated Maturity of a Debt
Security is not determinable (for example, because it is based on an index), the principal amount
of such Debt Security deemed to be Outstanding as of such date will be an amount determined in the
manner prescribed for such Debt Security;
(3) the principal amount of a Debt Security denominated in one or more foreign currencies or
currency units that will be deemed to be Outstanding will be the United States-dollar equivalent,
determined as of such date in the manner prescribed for such Debt Security, of the principal amount
of such Debt Security (or, in the case of a Debt Security described in clause (1) or (2) above, of
the amount described in such clause); and
(4) certain Debt Securities, including those owned by us, any Subsidiary Guarantor or any of
our other Affiliates, will not be deemed to be Outstanding.
Except in certain limited circumstances, we will be entitled to set any day as a record date
for the purpose of determining the Holders of Outstanding Debt Securities of any series entitled to
give or take any direction, notice, consent, waiver or other action under the applicable Indenture,
in the manner and subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by Holders. If a
record date is set for any action to be taken by Holders of a particular series, only persons who
are Holders of Outstanding Debt Securities of that series on the record date may take such action.
To be effective, such action must be taken by Holders of the requisite principal amount of such
Debt Securities within a specified period following the record date. For any particular record
date, this period will be 180 days or such other period as may be specified by us (or the Trustee,
if it set the record date), and may be shortened or lengthened (but not beyond 180 days) from time
to time.
Satisfaction and Discharge
Each Indenture will be discharged and will cease to be of further effect as to all outstanding
Debt Securities of any series issued thereunder, when:
either:
(1) (a) all outstanding Debt Securities of that series that have been authenticated (except
lost, stolen or destroyed Debt Securities that have been replaced or paid and Debt Securities for
whose payment money has theretofore been deposited in trust and thereafter repaid to us) have been
delivered to the Trustee for cancellation; or
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(b) all outstanding Debt Securities of that series that have been not delivered to the Trustee
for cancellation have become due and payable or will become due and payable at their Stated
Maturity within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee and in any case we have irrevocably deposited with the Trustee as trust
funds money in an amount sufficient, without consideration of any reinvestment of interest, to pay
the entire indebtedness of such Debt Securities not delivered to the Trustee for cancellation, for
principal, premium, if any, and accrued interest to the Stated Maturity or redemption date;
(2) we have paid or caused to be paid all other sums payable by us under the Indenture with
respect to the Debt Securities of that series; and
(3) we have delivered an Officers Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge of the Indenture with respect
to the Debt Securities of that series have been satisfied.
Legal Defeasance and Covenant Defeasance
To the extent indicated in the applicable prospectus supplement, we may elect, at our option
at any time, to have our obligations discharged under provisions relating to defeasance and
discharge of indebtedness, which we call legal defeasance, or relating to defeasance of certain
restrictive covenants applied to the Debt Securities of any series, or to any specified part of a
series, which we call covenant defeasance.
Legal Defeasance
The Indentures provide that, upon our exercise of our option (if any) to have the legal
defeasance provisions applied to any series of Debt Securities, we, and, if applicable, each
Subsidiary Guarantor will be discharged from all our obligations, and, if such Debt Securities are
Subordinated Debt Securities, the provisions of the Subordinated Indenture relating to
subordination will cease to be effective, with respect to such Debt Securities (except for certain
obligations to convert, exchange or register the transfer of Debt Securities, to replace stolen,
lost or mutilated Debt Securities, to maintain paying agencies and to hold moneys for payment in
trust) upon the deposit in trust for the benefit of the Holders of such Debt Securities of money or
U.S. Government Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount sufficient (in the
opinion of a nationally recognized firm of independent public accountants) to pay the principal of
and any premium and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the applicable Indenture and such Debt Securities. Such defeasance or
discharge may occur only if, among other things:
(1) we have delivered to the applicable Trustee an Opinion of Counsel to the effect that we
have received from, or there has been published by, the United States Internal Revenue Service a
ruling, or there has been a change in tax law, in either case to the effect that Holders of such
Debt Securities will not recognize gain or loss for federal income tax purposes as a result of such
deposit and legal defeasance and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit and legal defeasance
were not to occur;
(2) no Event of Default or event that with the passing of time or the giving of notice, or
both, shall constitute an Event of Default shall have occurred and be continuing at the time of
such deposit or, with respect to any Event of Default described in clause (8) under Events of
Default, at any time until 121 days after such deposit;
(3) such deposit and legal defeasance will not result in a breach or violation of, or
constitute a default under, any agreement or instrument (other than the applicable Indenture) to
which we are a party or by which we are bound;
(4) in the case of Subordinated Debt Securities, at the time of such deposit, no default in
the payment of all or a portion of principal of (or premium, if any) or interest on any Senior Debt
shall have occurred and be continuing, no event of default shall have resulted in the acceleration
of any Senior Debt and no other event of default with respect to any Senior Debt shall have
occurred and be continuing permitting after notice or the lapse of time, or both, the acceleration
thereof; and
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(5) we have delivered to the Trustee an Opinion of Counsel to the effect that such deposit
shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of
1940.
Covenant Defeasance
The Indentures provide that, upon our exercise of our option (if any) to have the covenant
defeasance provisions applied to any Debt Securities, we may fail to comply with certain
restrictive covenants (but not with respect to conversion, if applicable), including those that may
be described in the applicable prospectus supplement, and the occurrence of certain Events of
Default, which are described above in clause (5) (with respect to such restrictive covenants) and
clauses (6), (7) and (9) under Events of Default and any that may be described in the applicable
prospectus supplement, will not be deemed to either be or result in an Event of Default and, if
such Debt Securities are Subordinated Debt Securities, the provisions of the Subordinated Indenture
relating to subordination will cease to be effective, in each case with respect to such Debt
Securities. In order to exercise such option, we must deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient (in the opinion of a nationally recognized firm of independent public
accountants) to pay the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the applicable Indenture and such Debt
Securities. Such covenant defeasance may occur only if we have delivered to the applicable Trustee
an Opinion of Counsel to the effect that Holders of such Debt Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance were not to occur, and the
requirements set forth in clauses (2), (3), (4) and (5) above are satisfied. If we exercise this
option with respect to any series of Debt Securities and such Debt Securities were declared due and
payable because of the occurrence of any Event of Default, the amount of money and U.S. Government
Obligations so deposited in trust would be sufficient to pay amounts due on such Debt Securities at
the time of their respective Stated Maturities but may not be sufficient to pay amounts due on such
Debt Securities upon any acceleration resulting from such Event of Default. In such case, we would
remain liable for such payments.
If we exercise either our legal defeasance or covenant defeasance option, any Subsidiary
Guarantee will terminate.
Notices
Notices to Holders of Debt Securities will be given by mail to the addresses of such Holders
as they may appear in the Security Register.
Title
We, the Subsidiary Guarantors, the Trustees and any agent of us, the Subsidiary Guarantors or
a Trustee may treat the Person in whose name a Debt Security is registered as the absolute owner of
the Debt Security (whether or not such Debt Security may be overdue) for the purpose of making
payment and for all other purposes.
Governing Law
The Indentures and the Debt Securities will be governed by, and construed in accordance with,
the law of the State of New York.
The Trustee
We will enter into the Indentures with a Trustee that is qualified to act under the Trust
Indenture Act of 1939, as amended, and with any other Trustees chosen by us and appointed in a
supplemental indenture for a particular series of Debt Securities. We may maintain a banking
relationship in the ordinary course of business with our Trustee and one or more of its affiliates.
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Resignation or Removal of Trustee
If the Trustee has or acquires a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee must either eliminate its conflicting interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the
applicable Indenture. Any resignation will require the appointment of a successor Trustee under
the applicable Indenture in accordance with the terms and conditions of such Indenture.
The Trustee may resign or be removed by us with respect to one or more series of Debt
Securities and a successor Trustee may be appointed to act with respect to any such series. The
holders of a majority in aggregate principal amount of the Debt Securities of any series may remove
the Trustee with respect to the Debt Securities of such series.
Limitations on Trustee if It Is Our Creditor
Each Indenture will contain certain limitations on the right of the Trustee, in the event that
it becomes our creditor, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or otherwise.
Certificates and Opinions to Be Furnished to Trustee
Each Indenture will provide that, in addition to other certificates or opinions that may be
specifically required by other provisions of an Indenture, every application by us for action by
the Trustee must be accompanied by an Officers Certificate and an Opinion of Counsel stating that,
in the opinion of the signers, all conditions precedent to such action have been complied with by
us.
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DESCRIPTION OF CAPITAL STOCK
Our certificate of incorporation authorizes us to issue (i) 21,000,000 shares of capital
stock, consisting of 20,000,000 shares of common stock, par value $.01 per share, of which
9,947,794 shares were outstanding as of March 18, 2011, and (ii) 1,000,000 shares of preferred
stock, par value $1.00 per share, of which none were outstanding as of March 18, 2011. The summary
is also subject to applicable provisions of our amended and restated articles of incorporation.
Common Stock
Our common shareholders are entitled to one vote per share of common stock in the election of
directors and on all other matters on which shareholders are entitled or permitted to vote.
Holders of our common stock do not have cumulative voting rights. Therefore, subject to any voting
rights that may be later granted to holders of any preferred stock we may issue, under our bylaws,
holders of a plurality of the common stock present in person or represented by proxy at the meeting
and entitled to vote can elect all of our directors. Subject to the rights of any outstanding
series of our preferred stock, our common shareholders are entitled to dividends when and if
declared by our board of directors out of funds legally available for that purpose. Our common
stock is not subject to any calls or assessments. Upon liquidation or dissolution, our common
shareholders are entitled to share ratably in all net assets distributable to shareholders after
payment of any liquidation preferences to holders of our preferred stock. Holders of our common
stock have no redemption, conversion or preemptive rights.
Preferred Stock
We can issue up to 1,000,000 shares of our preferred stock in one or more series without
shareholder approval, in one or more series, and can determine, for any series of preferred stock,
the terms and rights of the series, including:
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the number of shares, designation and stated value of the series; |
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the rate and times at which dividends will be payable on shares of the series, any
preferences of such dividends over other shares of the series or shares of other series or
classes of our capital stock, and the status of dividends as cumulative or non-cumulative; |
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any prices, times and terms at or on which shares of the series may be redeemed; |
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any obligation of ours to purchase or redeem shares of the series pursuant to a sinking
or purchase fund for shares of the series, and the terms of any such obligation; |
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any rights to convert shares of the series into, or exchange shares of the series for,
shares of any other class of our capital stock; |
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the voting rights, if any, for shares of the series; |
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any rights and preferences of shares of the series upon any liquidation, dissolution or
winding up of our affairs or any distribution of our assets; |
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any conditions or restrictions upon the creation of indebtedness, issuances of any
additional stock, or payment of dividends or the making of other distributions on the
purchase, redemption or other acquisition of any of our outstanding capital stock; and |
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any other relative rights, powers, preferences, qualifications, limitations or
restrictions of any series. |
Any issuance of our preferred stock may adversely affect the voting powers or rights of the
holders of our common stock.
19
Effect of Certain Provisions of our Bylaws and the Texas Affiliated Business Combinations Statute.
We are subject to Section 21.606 of the Texas Business Organizations Code. That section
prohibits Texas corporations from engaging in a wide range of specified transactions with any
affiliated shareholder during the three-year period immediately following the affiliated
shareholders acquisition of shares in the absence of certain board of director or shareholder
approvals. An affiliated shareholder of a corporation is any person, other than the corporation and
any of its wholly owned subsidiaries, that is or was within the preceding three-year period the
beneficial owner of 20% or more of the outstanding shares of stock entitled to vote generally in
the election of directors. Section 21.606 may deter any potential unfriendly offers or other
efforts to obtain control of us that are not approved by our board. This may deprive our
shareholders of opportunities to sell shares of our common stock at a premium to the prevailing
market price.
Certain provisions in our bylaws may encourage persons considering unsolicited tender offers
or other unilateral takeover proposals to negotiate with our board of directors rather than pursue
non-negotiated takeover attempts. As discussed above, our board of directors can set the voting
rights, redemption rights, conversion rights and other rights relating to authorized but unissued
shares of preferred stock and could issue that stock in either private or public transactions.
Preferred stock could be issued for the purpose of preventing a merger, tender offer or other
takeover attempt which the board of directors opposes.
Transfer Agent And Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust
Company, New York, New York.
20
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our common stock. Warrants may be issued
independently or together with Debt Securities, preferred stock or common stock offered by any
prospectus supplement and may be attached to or separate from any such offered securities. Each
series of warrants will be issued under a separate warrant agreement to be entered into between us
and a bank or trust company, as warrant agent, all as set forth in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely as our agent in
connection with the warrants and will not assume any obligation or relationship of agency or trust
for or with any holders of warrants or beneficial owners of warrants. The following summary of
certain provisions of the warrants does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all provisions of the warrant agreements.
You should refer to the prospectus supplement relating to a particular issue of warrants for
the terms of and information relating to the warrants, including, where applicable:
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(1) |
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the number of shares of common stock purchasable upon exercise of the warrants and the
price at which such number of shares of common stock may be purchased upon exercise of the
warrants; |
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(2) |
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the date on which the right to exercise the warrants commences and the date on which
such right expires (the Expiration Date); |
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(3) |
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United States federal income tax consequences applicable to the warrants; |
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(4) |
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the amount of the warrants outstanding as of the most recent practicable date; and |
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(5) |
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any other terms of the warrants. |
Warrants will be offered and exercisable for United States dollars only. Each warrant will
entitle its holder to purchase such number of shares of common stock at such exercise price as is
in each case set forth in, or calculable from, the prospectus supplement relating to the warrants.
The exercise price may be subject to adjustment upon the occurrence of events described in such
prospectus supplement. After the close of business on the Expiration Date (or such later date to
which we may extend such Expiration Date), unexercised warrants will become void. The place or
places where, and the manner in which, warrants may be exercised will be specified in the
prospectus supplement relating to such warrants.
Prior to the exercise of any warrants, holders of the warrants will not have any of the rights
of holders of common stock, including the right to receive payments of any dividends on the common
stock purchasable upon exercise of the warrants, or to exercise any applicable right to vote.
21
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States (1) through underwriters,
brokers or dealers; (2) directly to purchasers, including our affiliates and shareholders; (3)
through agents, (4) at prevailing market prices by us directly or through a designated agent,
including sales made directly or through the facilities of The Nasdaq Global Market or any other
securities exchange or quotation or trading service on which such securities may be listed, quoted
or traded at the time of sale or (5) through a combination of any of these methods. The prospectus
supplement will include the following information:
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the terms of the offering; |
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the names of any underwriters, brokers, dealers or agents; |
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the name or names of any managing underwriter or underwriters; |
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the purchase price or public offering price of the securities; |
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the net proceeds to us from the sale of the securities; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions and other items constituting underwriters
compensation; |
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any discounts or concessions allowed or reallowed or paid to dealers; |
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any commissions paid to agents; |
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any securities exchange or market on which the securities may be listed. |
Sale Through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will acquire the securities for their
own account for resale to the public, either on a firm commitment basis or a best efforts basis.
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 otherwise in the prospectus supplement, the obligations of
the underwriters to purchase the securities will be subject to certain conditions. 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.
We may also make direct sales through subscription rights distributed to our existing
shareholders on a pro rata basis, which may or may not be transferable. In any distribution of
subscription rights to our shareholders, if all of the underlying securities are not subscribed
for, we may then sell the unsubscribed securities directly to third parties or may engage the
services of one or more underwriters, dealers or agents, including standby underwriters, to sell
the unsubscribed securities to third parties.
During and after an offering through underwriters, the underwriters may purchase and sell the
securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, 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.
Some or all of the debt securities that we offer though this prospectus may be new issues of
securities with no established trading market. Any underwriters to whom we sell such securities for
public offering and sale may make
22
a market in those securities, but they will not be obligated to do so and they may discontinue
any market making at any time without notice. Accordingly, we cannot assure you of the liquidity
of, or continued trading markets for, any debt securities that we offer.
If dealers are used in the sale of securities, we will sell the securities to them as
principals. The dealers may then resell those securities to the public at varying prices determined
by the dealers at the time of resale. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In that case, no underwriters or agents would be
involved. We may also sell the securities through agents designated 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 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.
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus
supplement, in connection with a remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as
principals for their own accounts or as agents for us. Any remarketing firm will be identified and
the terms of its agreements, if any, with us and its compensation will be described in the
applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term
is defined in the Securities Act, in connection with the securities remarketed.
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 debt 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.
General Information
We may have agreements with the agents, dealers, underwriters and remarketing firms to
indemnify them against certain civil liabilities, including liabilities under the Securities Act,
or to contribute with respect to payments that the agents, dealers, underwriters or remarketing
firms may be required to make.
Agents, dealers, underwriters and remarketing firms may be customers of, engage in
transactions with or perform services for us in the ordinary course of their businesses.
23
LEGAL MATTERS
Various legal matters, including the validity of the securities offered hereby, will be passed
on for us by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements of Mitcham Industries, Inc. appearing in Mitcham
Industries, Inc.s Annual Report (Form 10-K) for the year ended January 31, 2010 have been audited
by Hein & Associates LLP, independent registered public accounting firm, as set forth in their
report thereon, included therein, and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus, including any documents incorporated herein by reference, constitutes a part
of a registration statement on Form S-3 that we filed with the SEC under the Securities Act. This
prospectus does not contain all the information set forth in the registration statement. You should
refer to the registration statement and its related exhibits and schedules, and the documents
incorporated herein by reference, for further information about our company and the securities
offered in this prospectus. Statements contained in this prospectus concerning the provisions of
any document are not necessarily complete and, in each instance, reference is made to the copy of
that document filed as an exhibit to the registration statement or otherwise filed with the SEC,
and each such statement is qualified by this reference. The registration statement and its exhibits
and schedules, and the documents incorporated herein by reference, are on file at the offices of
the SEC and may be inspected without charge.
We file annual, quarterly, and current reports, proxy statements and other information with
the SEC. You can read and copy any materials we file with the SEC at the SECs Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. You can obtain information about the operation
of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website
that contains information we file electronically with the SEC, which you can access over the
Internet at http://www.sec.gov.
Our
web page is located at http://mitchamindustries.com. Information on our web site or any
other web site is not incorporated by reference in this prospectus and does not constitute a part
of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating by reference in this prospectus 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 Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, excluding any information in those
documents that is deemed by the rules of the SEC to be furnished not filed, until we close this
offering:
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our Annual Report on Form 10-K for the year ended January 31, 2010, including
information specifically incorporated by reference from our Proxy Statement for our Annual
Meeting of Shareholders held on July 27, 2010; |
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our Quarterly Reports on Form 10-Q for the fiscal quarters ended April 30, 2010, July
31, 2010 and October 31, 2010; |
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our Current Reports on Form 8-K filed on each of February 25, 2010, March 4, 2010, March
26, 2010 and August 2, 2010 (excluding any information furnished pursuant to Item 2.02 or
Item 7.01 of any such Current Report on Form 8-K); and |
24
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the description of our common stock contained in our registration statement on Form 8-A
filed with the SEC on November 18, 1994 pursuant to Section 12 of the Securities Exchange
Act of 1934, including any amendments and reports filed for the purpose of updating such
description. |
These reports contain important information about us, our financial condition and our results
of operations.
All future documents filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on
Form 8-K) after the date on which the registration statement that includes this prospectus was
initially filed with the SEC (including all such documents we may file with the SEC after the date
of the initial registration statement and prior to the effectiveness of the registration statement)
and until all offerings under this shelf registration statement are terminated shall be deemed to
be incorporated in this prospectus by reference and to be a part hereof from the date of filing of
such documents. Any statement contained herein, or in a document incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You may request a copy of these filings, which we will provide to you at no cost, by writing
or telephoning us at the following address and telephone number:
Mitcham Industries, Inc.
8141 SH 75 South
P.O. Box 1175
Huntsville, Texas 7734
(936) 291-2277
Attention: Chief Financial Officer
25
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with the distribution of
the securities covered by the registration statement of which this prospectus is a part. We will
bear all of these expenses.
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Registration fee under the Securities Act |
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$ |
6,966 |
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Legal fees and expenses* |
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$ |
15,000 |
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Printing expenses * |
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$ |
10,000 |
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Accounting fees and expenses* |
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$ |
5,000 |
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Miscellaneous* |
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$ |
3,034 |
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Total |
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$ |
40,000 |
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* |
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Estimated solely for the purpose of this Item. Actual expenses may be more or less. |
Item 15. Indemnification of Officers and Directors.
Under the Companys Amended and Restated Articles of Incorporation, the Company is required to
indemnify its directors, officers, employees and agents and maintain liability insurance for those
persons in accordance with the provisions of Chapter 8 of the Texas Business Organizations Code.
Section 8.101 of the Texas Business Organizations Code provides that a corporation may indemnify a
governing person, or delegate, who was, is or is threatened to be made a named defendant or
respondent in a proceeding if it is determined that the person: (i) conducted himself in good
faith; (ii) reasonably believed that (a) in the case of conduct in his official capacity that his
conduct was in the corporations best interest and (b) in all other cases, that his conduct was at
least not opposed to the corporations best interest; and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. However, if the person is
found liable to the corporation, or if the person is found liable on the basis that he received an
improper personal benefit, indemnification under Texas law is limited to the reimbursement of
reasonable expenses actually incurred by the person in connection with the proceedings and does not
include a judgment, a penalty, a fine, and an excise or similar tax, and no indemnification will be
available if the person is found liable for willful or intentional misconduct, breach of the
persons duty of loyalty, or an act or omission not committed in good faith that constitutes a
breach of a duty owed by the person to the corporation. Under Texas law, indemnification by the
corporation is mandatory if the person is wholly successful on the merits or otherwise, in the
defense of the proceeding.
Item 16. Exhibits
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Exhibit No. |
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Description |
1.1*
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Form of Underwriting Agreement |
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4.1
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Form of Senior Indenture (including Form of Senior Note) |
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4.2
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Form of Subordinated Indenture (including Form of Subordinated Note) |
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4.3*
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Form of Warrant Agreement, including form of Warrant. |
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5.1
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Opinion of Vinson & Elkins L.L.P. |
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23.1
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Consent of Hein & Associates LLP. |
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23.2
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Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1). |
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24.1
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Powers of Attorney (included on the signature pages to this registration statement). |
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Exhibit No. |
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Description |
25.1**
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Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of the Trustee
(to be filed prior to any issuance of Senior Indenture). |
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25.2**
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Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of the Trustee
(to be filed prior to any issuance of Subordinated Indenture). |
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* |
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To be filed as an Exhibit to a Current Report on Form 8-K or in a post-effective amendment to
this registration statement. |
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** |
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To be filed in accordance with the requirements of the Trust Indenture Act of 1939. |
Item 17. Undertakings
A. The undersigned registrant hereby undertakes:
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(1) |
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To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: |
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(a) |
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To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(b) |
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To reflect in the prospectus any facts or events arising after the effective
date of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be reflected in the
form of the prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in
the effective registration statement; and |
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(c) |
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To include any material information with respect to the plan of distribution
not previously disclosed in this registration statement or any material change to the
information in this registration statement; |
provided, however, that paragraphs A(1)(a), A(l)(b) and A(1)(c) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this registration statement, or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of this registration statement.
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That, for the purpose of determining any liability under the Securities Act, each of
the post-effective amendments shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering thereof. |
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(3) |
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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. |
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(4) |
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That, for the purpose of determining liability under the Securities Act to any purchaser: |
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(a) |
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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 |
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(b) |
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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 |
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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. |
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(5) |
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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 this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the 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: |
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(a) |
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Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424; |
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(b) |
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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; |
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(c) |
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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 |
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(d) |
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Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser. |
B. |
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The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of its annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of the securities at that time
shall be deemed to be the initial bona fide offering thereof. |
C. |
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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 provisions
described in Item 15 above, or otherwise, the registrant has been advised that in the opinion
of the SEC that indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification against any
liability (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 a 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 indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final adjudication of the
issue. |
D. |
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Each undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee under each of its indentures to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended (the Act) in
accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the
Act. |
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 on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Huntsville, State of Texas, on the
18th day of March, 2011.
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MITCHAM INDUSTRIES, INC.
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By: |
/s/ Billy F. Mitcham, Jr.
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Billy F. Mitcham, Jr. |
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President and Chief Executive Officer
(Principal Executive Officer) |
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SEAMAP INC.
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By: |
/s/ Billy F. Mitcham, Jr.
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Billy F. Mitcham, Jr., |
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President and Chief Executive Officer
(Principal Executive Officer) |
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DRILLING SERVICES, INC.
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By: |
/s/ Billy F. Mitcham, Jr.
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Billy F. Mitcham, Jr., |
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President and Chief Executive Officer
(Principal Executive Officer) |
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Billy F. Mitcham, Jr. and Robert P. Capps, and each of them severally his true and lawful
attorney or attorneys-in-fact and agents, with full power to act with or without the others and
with full power of substitution and resubstitution, to execute in his name, place and stead, in any
and all capacities, any or all amendments (including pre-effective and post-effective amendments)
to this Registration Statement and any registration statement for the same offering filed pursuant
to Rule 462 under the Securities Act of 1933, 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 in
the name of on behalf of the undersigned, in any and all capacities, each and every act and thing
necessary or desirable to be done in and about the premises, to all intents and purposes and as
fully as they might or could do in person, hereby ratifying, approving and confirming all that said
attorneys-in-fact and agents or their 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 on the
18th day of March, 2011.
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Signature |
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Title |
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/s/ Billy F. Mitcham, Jr.
Billy F. Mitcham, Jr.
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Robert P. Capps
Robert P. Capps
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Executive Vice President, Chief Financial Officer and
Director (Principal Financial Officer and Principal
Accounting Officer) |
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/s/ Peter H. Blum
Peter H. Blum
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Non-Executive Chairman of the Board |
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/s/ Robert J. Albers
Robert J. Albers
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Director |
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/s/ John F. Schwalbe
John F. Schwalbe
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Director |
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/s/ Randal Dean Lewis
Randal Dean Lewis
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Director |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
1.1*
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Form of Underwriting Agreement |
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4.1
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Form of Senior Indenture (including Form of Senior Note) |
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4.2
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|
Form of Subordinated Indenture (including Form of Subordinated Note) |
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4.3*
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|
Form of Warrant Agreement, including form of Warrant. |
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5.1
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Opinion of Vinson & Elkins L.L.P. |
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23.1
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Consent of Hein & Associates LLP. |
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23.2
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Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1). |
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|
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24.1
|
|
Powers of Attorney (included on the signature pages to this registration statement). |
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25.1**
|
|
Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of the Trustee
(to be filed prior to any issuance of Senior Indenture). |
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|
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25.2**
|
|
Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of the Trustee
(to be filed prior to any issuance of Subordinated Indenture). |
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|
|
* |
|
To be filed as an Exhibit to a Current Report on Form 8-K or in a post-effective amendment to
this registration statement. |
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** |
|
To be filed in accordance with the requirements of the Trust Indenture Act of 1939. |
exv4w1
Exhibit 4.1
MITCHAM INDUSTRIES, INC.,
as Issuer
AND
ANY SUBSIDIARY GUARANTORS PARTIES HERETO,
as Subsidiary Guarantors
TO
[TRUSTEES NAME],
as Trustee
Dated as of _____________, 20___
TABLE OF CONTENTS
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Page |
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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1 |
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SECTION 101. Definitions |
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1 |
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SECTION 102. Compliance Certificates and Opinions |
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7 |
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SECTION 103. Form of Documents Delivered to Trustee |
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8 |
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SECTION 104. Acts of Holders; Record Dates |
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8 |
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SECTION 105. Notices, Etc., to Trustee and Company |
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10 |
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SECTION 106. Notice to Holders; Waiver |
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11 |
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SECTION 107. Conflict with Trust Indenture Act |
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11 |
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SECTION 108. Effect of Headings and Table of Contents |
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11 |
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SECTION 109. Successors and Assigns |
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12 |
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SECTION 110. Separability Clause |
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12 |
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SECTION 111. Benefits of Indenture |
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12 |
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SECTION 112. Governing Law |
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12 |
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SECTION 113. Legal Holidays |
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12 |
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SECTION 114. No Recourse Against Others |
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12 |
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ARTICLE TWO SECURITY FORMS |
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13 |
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SECTION 201. Forms Generally |
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13 |
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SECTION 202. Form of Face of Security |
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13 |
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SECTION 203. Form of Reverse of Security |
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15 |
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SECTION 204. Form of Notation of Subsidiary Guarantee |
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18 |
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SECTION 205. Form of Legend for Global Securities |
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19 |
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SECTION 206. Form of Trustees Certificate of Authentication |
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19 |
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SECTION 207. Form of Conversion Notice |
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19 |
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ARTICLE THREE THE SECURITIES |
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21 |
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SECTION 301. Amount Unlimited; Issuable in Series |
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21 |
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SECTION 302. Denominations |
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23 |
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SECTION 303. Execution, Authentication, Delivery and Dating |
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23 |
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SECTION 304. Temporary Securities |
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25 |
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SECTION 305. Registration, Registration of Transfer and Exchange |
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25 |
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities |
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27 |
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SECTION 307. Payment of Interest; Interest Rights Preserved |
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28 |
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SECTION 308. Persons Deemed Owners |
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29 |
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SECTION 309. Cancellation |
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29 |
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SECTION 310. Computation of Interest |
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29 |
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ARTICLE FOUR SATISFACTION AND DISCHARGE |
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30 |
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SECTION 401. Satisfaction and Discharge of Indenture |
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30 |
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SECTION 402. Application of Trust Money |
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31 |
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ARTICLE FIVE REMEDIES |
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31 |
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SECTION 501. Events of Default |
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31 |
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i
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Page |
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SECTION 502. Acceleration of Maturity; Rescission and Annulment |
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33 |
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee |
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34 |
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SECTION 504. Trustee May File Proofs of Claim |
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34 |
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities |
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35 |
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SECTION 506. Application of Money Collected |
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35 |
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SECTION 507. Limitation on Suits |
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35 |
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest |
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36 |
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SECTION 509. Restoration of Rights and Remedies |
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36 |
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SECTION 510. Rights and Remedies Cumulative |
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36 |
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SECTION 511. Delay or Omission Not Waiver |
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37 |
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SECTION 512. Control by Holders |
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37 |
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SECTION 513. Waiver of Past Defaults |
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37 |
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SECTION 514. Undertaking for Costs |
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38 |
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SECTION 515. Waiver of Usury, Stay or Extension Laws |
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38 |
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ARTICLE SIX THE TRUSTEE |
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38 |
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SECTION 601. Certain Duties and Responsibilities |
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38 |
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SECTION 602. Notice of Defaults |
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38 |
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SECTION 603. Certain Rights of Trustee |
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39 |
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SECTION 604. Not Responsible for Recitals or Issuance of Securities |
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39 |
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SECTION 605. May Hold Securities |
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40 |
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SECTION 606. Money Held in Trust |
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40 |
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SECTION 607. Compensation and Reimbursement |
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40 |
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SECTION 608. Conflicting Interests |
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40 |
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SECTION 609. Corporate Trustee Required; Eligibility |
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41 |
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SECTION 610. Resignation and Removal; Appointment of Successor |
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41 |
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SECTION 611. Acceptance of Appointment by Successor |
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42 |
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business |
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43 |
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SECTION 613. Preferential Collection of Claims Against Company and Subsidiary Guarantors |
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44 |
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SECTION 614. Appointment of Authenticating Agent |
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44 |
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY |
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45 |
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SECTION 701. Company to Furnish Trustee Names and Addresses of Holders |
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45 |
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SECTION 702. Preservation of Information; Communications to Holders |
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46 |
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SECTION 703. Reports by Trustee |
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46 |
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SECTION 704. Reports by Company and Subsidiary Guarantors |
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46 |
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ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
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46 |
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SECTION 801. Company May Consolidate, Etc., Only on Certain Terms |
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46 |
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SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms |
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47 |
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SECTION 803. Successor Substituted |
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48 |
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ii
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Page |
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ARTICLE NINE SUPPLEMENTAL INDENTURES |
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48 |
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SECTION 901. Supplemental Indentures Without Consent of Holders |
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48 |
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SECTION 902. Supplemental Indentures With Consent of Holders |
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49 |
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SECTION 903. Execution of Supplemental Indentures |
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51 |
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SECTION 904. Effect of Supplemental Indentures |
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51 |
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SECTION 905. Conformity with Trust Indenture Act |
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51 |
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SECTION 906. Reference in Securities to Supplemental Indentures |
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51 |
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ARTICLE TEN COVENANTS |
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51 |
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SECTION 1001. Payment of Principal, Premium and Interest |
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51 |
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SECTION 1002. Maintenance of Office or Agency |
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52 |
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SECTION 1003. Money for Securities Payments to Be Held in Trust |
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52 |
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SECTION 1004. Statement by Officers as to Default |
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53 |
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SECTION 1005. Existence |
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54 |
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SECTION 1006. Maintenance of Properties |
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54 |
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SECTION 1007. Payment of Taxes and Other Claims |
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54 |
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SECTION 1008. Maintenance of Insurance |
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54 |
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SECTION 1009. Waiver of Certain Covenants |
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54 |
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ARTICLE ELEVEN REDEMPTION OF SECURITIES |
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55 |
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SECTION 1101. Applicability of Article |
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55 |
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SECTION 1102. Election to Redeem; Notice to Trustee |
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55 |
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed |
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55 |
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SECTION 1104. Notice of Redemption |
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56 |
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SECTION 1105. Deposit of Redemption Price |
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57 |
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SECTION 1106. Securities Payable on Redemption Date |
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57 |
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SECTION 1107. Securities Redeemed in Part |
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58 |
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ARTICLE TWELVE [INTENTIONALLY OMITTED] |
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58 |
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ARTICLE THIRTEEN SUBSIDIARY GUARANTEES |
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58 |
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SECTION 1301. Applicability of Article |
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58 |
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SECTION 1302. Subsidiary Guarantees |
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58 |
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SECTION 1303. Execution and Delivery of Notations of Subsidiary Guarantees |
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60 |
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SECTION 1304. Release of Subsidiary Guarantors |
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60 |
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SECTION 1305. Additional Subsidiary Guarantors |
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61 |
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SECTION 1306. Limitation on Liability |
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61 |
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ARTICLE FOURTEEN [INTENTIONALLY OMITTED] |
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61 |
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ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE |
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61 |
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SECTION 1501. Companys Option to Effect Defeasance or Covenant Defeasance |
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61 |
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SECTION 1502. Defeasance and Discharge |
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62 |
|
SECTION 1503. Covenant Defeasance |
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62 |
|
SECTION 1504. Conditions to Defeasance or Covenant Defeasance |
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63 |
|
SECTION 1505. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions |
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64 |
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iii
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Page |
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SECTION 1506. Reinstatement |
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65 |
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ARTICLE SIXTEEN SINKING FUNDS |
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65 |
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SECTION 1601. Applicability of Article |
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65 |
|
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities |
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65 |
|
SECTION 1603. Redemption of Securities for Sinking Fund |
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66 |
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Schedule I Subsidiary Guarantors |
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iv
MITCHAM INDUSTRIES, INC.
RECONCILIATION AND TIE OF CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH
318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
|
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
Section |
|
310(a)(1) |
|
609 |
|
|
(a)(2) |
|
609 |
|
|
(a)(3) |
|
Not Applicable |
|
|
(a)(4) |
|
Not Applicable |
|
|
(b) |
|
608, 610 |
|
|
|
|
|
Section |
|
311(a) |
|
613 |
|
|
(b) |
|
613 |
|
|
|
|
|
Section |
|
312(a) |
|
701, 702 |
|
|
(b) |
|
702 |
|
|
(c) |
|
702 |
|
|
|
|
|
Section |
|
313(a) |
|
703 |
|
|
(b) |
|
703 |
|
|
(c) |
|
703 |
|
|
(d) |
|
703 |
|
|
|
|
|
Section |
|
314(a) |
|
704 |
|
|
(a)(4) |
|
101, 1004 |
|
|
(b) |
|
Not Applicable |
|
|
(c)(1) |
|
102 |
|
|
(c)(2) |
|
102 |
|
|
(c)(3) |
|
Not Applicable |
|
|
(d) |
|
Not Applicable |
|
|
(e) |
|
102 |
|
|
|
|
|
Section |
|
315(a) |
|
601 |
|
|
(b) |
|
602 |
|
|
(c) |
|
601 |
|
|
(d) |
|
601 |
|
|
(e) |
|
514 |
|
|
|
|
|
Section |
|
316(a) |
|
101 |
|
|
(a)(1)(A) |
|
502, 512 |
|
|
(a)(1)(B) |
|
513 |
|
|
(a)(2) |
|
Not Applicable |
|
|
(b) |
|
508 |
v
|
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
|
|
(c) |
|
104 |
|
|
|
|
|
Section |
|
317(a)(1) |
|
503 |
|
|
(a)(2) |
|
504 |
|
|
(b) |
|
1003 |
|
|
|
|
|
Section |
|
318(a) |
|
107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
vi
INDENTURE, dated as of ______________, 20___, among Mitcham Industries, Inc., a
corporation duly organized and existing under the laws of the State of Texas (herein called the
Company), having its principal office at 8141 SH 75 South, P.O. Box 1175, Huntsville, Texas
77342, each of the Subsidiary Guarantors (as hereinafter defined) parties hereto and [TRUSTEES
NAME], a [_____________] duly organized and existing under the laws of [_____________], as Trustee
(herein called the Trustee).
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
The Company and the Subsidiary Guarantors are members of the same consolidated group of
companies. The Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each Subsidiary Guarantor has duly authorized the
execution and delivery of this Indenture to provide for its full, unconditional and joint and
several guarantee of the Securities to the extent provided in or pursuant to this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to
1
any computation required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument;
(4) unless the context otherwise requires, any reference to an Article or a Section refers
to an Article or a Section, as the case may be, of this Indenture; and
(5) the words herein, hereof, hereunder and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing; provided that direct or indirect
beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means, with respect to the Company, either the board of directors of the
Company or any committee of that board duly authorized to act for it in respect hereof, and with
respect to any Subsidiary Guarantor, either the board of directors of such Subsidiary Guarantor or
any committee of that board duly authorized to act for it in respect hereof.
Board Resolution means, with respect to the Company or a Subsidiary Guarantor, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company or such Subsidiary
Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Capital Stock of any Person means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person.
Commission means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
2
Common Stock means the common stock, $0.01 par value, of the Company as the same exists at
the date of execution and delivery of this Indenture or other Capital Stock of the Company into
which such common stock is converted, reclassified or changed from time to time.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
Conversion Agent means any Person authorized by the Company to convert any Securities on
behalf of the Company.
Corporate Trust Office means the principal office of the Trustee in [_____________,
_____________] at which at any particular time its corporate trust business shall be administered,
such office being located on the date hereof at [TRUSTEES ADDRESS].
corporation means a corporation, association, limited liability company, joint-stock company
or business trust.
Covenant Defeasance has the meaning specified in Section 1503.
Debt of any Person at any date means any obligation created, assumed or guaranteed by such
Person for the repayment of borrowed money.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1502.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Global Security means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 205 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
Holder means a Person in whose name a Security is registered in the Security Register.
3
Indenture means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Investment Company Act means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 501(5).
Officers Certificate means a certificate signed by the Chairman of the Board of Directors,
a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or a Subsidiary
Guarantor, as the case may be, and delivered to the Trustee. One of the officers signing an
Officers Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
Opinion of Counsel means, as to the Company or a Subsidiary Guarantor, a written opinion of
counsel, who may be counsel for the Company or such Subsidiary Guarantor, as the case may be, and
who shall be acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own
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Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1502; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security described in clause
(A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by
the Company, any Subsidiary Guarantor or any other obligor upon the Securities or any Affiliate of
the Company, any Subsidiary Guarantor or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, a Subsidiary Guarantor or of such other
obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
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Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Significant Subsidiary means, at any date of determination, any Subsidiary that represents
10% or more of the Companys consolidated total assets at the end of the most recent fiscal quarter
for which financial information is available or 10% or more of the Companys consolidated net
revenues or consolidated operating income for the most recent four quarters for which financial
information is available.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of any Person means (1) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or
(2) any other Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies, management and
affairs thereof.
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Subsidiary Guarantees means the guarantees of each Subsidiary Guarantor as provided in
Article Thirteen.
Subsidiary Guarantors means (1) the subsidiaries listed in Schedule I hereto; (2)
each other Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance with Section
1305 hereof and (3) any successor of the foregoing, in each case (1), (2) and (3) until such
Subsidiary Guarantor ceases to be such in accordance with Section 1304 hereof.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation has the meaning specified in Section 1504.
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Voting Stock of any Person means Capital Stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such voting power by
reason of any contingency.
Wholly Owned Subsidiary of any Person means a Subsidiary of such Person all of the
outstanding Capital Stock of which (other than directors qualifying shares) shall at the time be
owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company and/or such Subsidiary
Guarantor, as appropriate, shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers Certificate, if to be given by an officer of the Company or a Subsidiary
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
7
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Subsidiary Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or such Subsidiary Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or such Subsidiary Guarantor,
unless such counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
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SECTION 104. Acts of Holders; Record Dates. |
Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities of any or all series may take action (including the
making of any demand or request, the giving of any direction, notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
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writing, (b) by the record of the Holders voting in favor thereof at any meeting of Holders
duly called and held in accordance with procedures approved by the Trustee, (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders or (d) in the case
of Securities evidenced by a Global Security, by any electronic transmission or other message,
whether or not in written format, that complies with the Depositarys applicable procedures. Such
evidence (and the action embodied therein and evidenced thereby) are herein sometimes referred to
as the Act of the relevant Holders. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient. The ownership of Securities
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the
9
applicable Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Companys expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the Expiration Date and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:
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(1) the Trustee by any Holder or by the Company or any Subsidiary Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing in the English
language to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department; or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
in the English language and mailed, first-class postage prepaid, in the case of the Company
addressed to it at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the Company
and, in the case of any Subsidiary Guarantor, to it at the address of the Companys principal
office specified in the first paragraph of this instrument, Attention: Chief Financial Officer, or
at any other address previously furnished in writing to the Trustee by such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing in the English
language and mailed, first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any Subsidiary Guarantor
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, the Securities or the Subsidiary Guarantees shall be
invalid, illegal or unenforceable, the validity, legality and enforce ability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Subsidiary Guarantees, express or implied,
shall give to any Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, purchase date or Stated Maturity
of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date or purchase date, or at the
Stated Maturity.
SECTION 114. No Recourse Against Others.
The directors, officers, employees and stockholders of the Company and, if applicable, the
Subsidiary Guarantors, as such, shall have no liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantees of this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a
Security, each Holder shall be deemed to have waived and released all such liability. The waiver
and release shall be a part of the consideration for the issue of the Securities.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and, if applicable, the notations of Subsidiary Guarantees to be
endorsed thereon shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or Depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
Mitcham Industries, Inc.
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No. _____________
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$_____________ |
Mitcham Industries, Inc., a corporation duly organized and existing under the laws of Texas
(herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to _____________, or
registered assigns, the principal sum of _________ Dollars on _____________ [if the Security is to
bear interest prior to Maturity, insert , and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on _____________ and _____________ in each year, commencing _____________, at the
rate of ___% per annum, until the principal hereof is paid or made available for payment, provided
that any principal and premium, and any such installment of interest, which is overdue shall bear
interest at the rate of ___% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be
the _____________ or _____________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so
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punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in _____________, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed [under its
corporate seal].
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Dated: |
MITCHAM INDUSTRIES, INC.
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By: |
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[Attest:
]
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SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
_____________, 20__ (herein called the Indenture, which term shall have the meaning assigned to
it in such instrument), among the Company, the Subsidiary Guarantors named therein and [TRUSTEES
NAME], as Trustee (herein called the Trustee, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantors,
the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series designated on the face
hereof [if applicable, insert , limited in aggregate principal amount to $_____________].
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days notice by mail, [if applicable, insert (1) on _____________
in any year commencing with the year ___ and ending with the year ___ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)]
at any time [if applicable, insert on or after _____________, 20__], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert on or before _____________, ___%, and if
redeemed] during the 12-month period beginning _____________ of the years indicated,
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Redemption |
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Redemption |
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Year |
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption [if applicable, insert (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days notice by mail, (1) on _____________ in any year commencing
with the year ___ and ending with the year ___ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert on or after _____________], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning _____________ of the years indicated,
15
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Redemption Price for Redemption |
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Redemption Price For Redemption |
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of the Sinking Fund |
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert Notwithstanding the foregoing, the Company may not, prior to
_____________, redeem any Securities of this series as contemplated by [if applicable, insert
clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of less than ___% per
annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
_____________ in each year beginning with the year _____________ and ending with the year
_____________ of [if applicable, insert not less than $_____________ (mandatory sinking fund)
and not more than] $_____________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than through [if
applicable, insert mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert mandatory] sinking fund payments otherwise required to be made [if
applicable, insert , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[If the Security is subject to conversion, insert Subject to the provisions of the
Indenture, the Holder has the right to convert the principal amount of this Security into fully
paid and nonassessable shares of Common Stock of the Company at the initial conversion price per
share of Common Stock of $___ (or $___ in principal amount of Securities for each such share of
Common Stock), or at the adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Security to the Conversion Agent, together with a
fully executed notice in substantially the form attached hereto and, if required by the Indenture,
an amount equal to accrued interest payable on this Security.]
[If applicable, insert As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are guaranteed pursuant to
the Indenture as indicated in the notation of Subsidiary Guarantee endorsed hereon. The
16
Indenture provides that a Subsidiary Guarantor shall be released from its Subsidiary Guarantee
upon compliance with certain conditions.]
[If applicable, insert The Indenture contains provisions for Defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Companys obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable security or indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
17
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective due dates expressed
herein [if applicable, insert or the right to convert this Security in accordance with its
terms].
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed [if applicable, insert and to convert such Security in
accordance with its terms].
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $_________ and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204. Form of Notation of Subsidiary Guarantee.
NOTATION OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
18
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article Thirteen
of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee.
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[Insert Names of Subsidiary Guarantors]
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SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 206. Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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[TRUSTEES NAME], as Trustee
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By: |
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Authorized Officer |
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SECTION 207. Form of Conversion Notice.
Each convertible Security shall have attached thereto, or set forth on the reverse of the
Security, a notice of conversion in substantially the following form:
19
Conversion Notice
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To: |
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Mitcham Industries, Inc. |
The undersigned owner of this Security hereby: (i) irrevocably exercises the option to
convert this Security, or the portion hereof below designated, for shares of Common Stock of
Mitcham Industries, Inc. in accordance with the terms of the Indenture referred to in this Security
and (ii) directs that such shares of Common Stock deliverable upon the conversion, together with
any check in payment for fractional shares and any Security(ies) representing any unconverted
principal amount hereof, be issued and delivered to the registered holder hereof unless a different
name has been indicated below. If shares are to be delivered registered in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of interest accompanies this
Security.
Fill in for registration of shares if to be delivered, and of Securities if to be issued, otherwise
than to and in the name of the registered holder.
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Social Security or other Taxpayer
Identification Number |
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(Please print name and address)
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Principal amount to be converted: (if less than all)
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Participant in a recognized Signature Guarantee Medallion Program (or other
signature acceptable to the Trustee). |
20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);
(2) if the Securities of the series will not have the benefit of the Subsidiary Guarantees of
the Subsidiary Guarantors;
(3) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered hereunder);
(4) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(5) the date or dates on which the principal of any Securities of the series is payable;
(6) the rate or rates at which any Securities of the series shall bear interest, if any, the
date or dates from which any such interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(7) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;
(8) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem or purchase any Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions
21
upon which any Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;
(11) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;
(12) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of Outstanding in
Section 101;
(13) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of the principal amount of
any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(15) if the principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 1502 or Section 1503 or both such Sections and, if other than by
a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
(17) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and any circumstances in
addition to or in lieu of those set forth in clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for Securities registered, and
any
22
transfer of such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in Article Ten which applies to
Securities of the series;
(20) whether the Securities of the series will be convertible into Common Stock (or cash in
lieu thereof) and, if so, the terms and conditions upon which such conversion will be effected; and
(21) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
The Securities of each series shall have the benefit of the Subsidiary Guarantees unless the
Company elects otherwise upon the establishment of a series pursuant to this Section 301.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents. If its corporate seal is reproduced thereon, then it shall be attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such
23
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company and, if applicable, having
endorsed thereon the notations of Subsidiary Guarantees executed as provided in Section 1303 by the
Subsidiary Guarantors to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of the Securities of
the series have been established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) 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 legally binding obligations of the Company, and, if applicable, the notations
of Subsidiary Guarantees endorsed thereon will constitute valid and legally binding obligations of
the Subsidiary Guarantors, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by manual
24
signature, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities and, if applicable, having
endorsed thereon the notations of Subsidiary Guarantees in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities and, if applicable, notations of Subsidiary Guarantees may determine, as
evidenced by their execution of such Securities and notations of Subsidiary Guarantees.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount and, if applicable, having endorsed thereon the notations of
Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, if
applicable the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon and the Trustee shall authenticate and deliver, in the name of the designated
25
transferee or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the notations of Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or otherwise not involving any
transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, and in either case the Company fails
26
to appoint a successor Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and the Depositary shall have
notified the Trustee of its decision to exchange such Global Security for Securities in
certificated form, (C) subject to the rules of the Depositary, the Company shall have elected to
terminate the book-entry system through the Depositary or (D) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding, and, if
applicable, the Subsidiary Guarantors shall execute the notation of Subsidiary Guarantee endorsed
thereon.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless from any loss that
any of them may suffer if a Security is replaced, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a protected purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, and, if applicable, the Subsidiary Guarantors
shall execute the notation of Subsidiary Guarantee endorsed thereon. In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable or is to be
converted, the Company in its discretion may, instead of issuing a new Security, pay or authorize
the conversion of such Security (without surrender thereof save in the case of a mutilated
Security).
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
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Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement, payment or conversion of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary Guarantors, or the
Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee nor any
agent of the Company, any Subsidiary Guarantor, or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in
accordance with its standard procedures, unless as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to the
Securities of any series, and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i)
Securities of such series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such 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 the Company or, if applicable, a Subsidiary Guarantor, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient, without consideration of any reinvestment of interest,
to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company and the Subsidiary Guarantors with respect to the Securities of such
series; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Company with respect to the
Securities of such series under Sections 304, 305, 306, 1002 and 1003, any surviving rights of
conversion, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series
at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach, of any covenant of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of such
series, any Subsidiary Guarantor in Article Eight of this Indenture; or
(5) default in the performance, or breach, of any covenant or warranty of the Company or, if
the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of such
series, any Subsidiary Guarantor in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a Notice of Default hereunder; or
(6) any Debt of the Company, any Significant Subsidiary or, if the Subsidiary Guarantors have
issued Subsidiary Guarantees with respect to the Securities of such series, any Subsidiary
Guarantor is not paid within any applicable grace period after final maturity or is
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accelerated by the holders thereof because of a default and the total amount of such Debt
unpaid or accelerated exceeds $20.0 million, or its foreign currency equivalent at the time; or
(7) any judgment or decree for the payment of money in excess of $20.0 million or its foreign
currency equivalent at the time it is entered against the Company, any Significant Subsidiary or,
if the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of
such series, any Subsidiary Guarantor, remains outstanding for a period of 60 consecutive days
following the entry of such judgment or decree and is not discharged, waived or the execution
thereof stayed; or
(8) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company, any Significant Subsidiary or, if the Subsidiary Guarantors have
issued Subsidiary Guarantees with respect to the Securities of such series, any Subsidiary
Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company, any
Significant Subsidiary or any such Subsidiary Guarantor a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company, any Significant Subsidiary or any such Subsidiary Guarantor under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, any Significant Subsidiary or any
such Subsidiary Guarantor or of any substantial part of its or their property, or ordering the
winding up or liquidation of its or their affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the commencement by the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities of such series, any
Subsidiary Guarantor of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it or them to the entry of a decree or
order for relief in respect of the Company, any Significant Subsidiary or any such Subsidiary
Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it or them, or the filing by it or them of a petition or
answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it or them to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, any Significant Subsidiary or any such Subsidiary Guarantor or of any
substantial part of its or their property, or the making by it or them of an assignment for the
benefit of creditors, or the admission by it or them in writing of its or their inability to pay
its or their debts generally as they become due, or the taking of corporate action by the Company,
any Significant Subsidiary or any such Subsidiary Guarantor in furtherance of any such action; or
(10) in the event the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to
the Securities of such series, the Subsidiary Guarantee of any Subsidiary Guarantor is held by a
final non-appealable order or judgment of a court of competent jurisdiction to be
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unenforceable or invalid or ceases for any reason to be in full force and effect (other than
in accordance with the terms of this Indenture) or any Subsidiary Guarantor or any Person acting on
behalf of any Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantors obligations
under its Subsidiary Guarantee (other than by reason of a release of such Subsidiary Guarantor from
its Subsidiary Guarantee in accordance with the terms of this Indenture); or
(11) any other Event of Default provided with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default with respect to the Company specified
in Section 501(8) or 501(9)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series may declare the principal amount
of all the Securities of that series (or, if any Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified by
the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount), together with any accrued and unpaid interest thereon, shall become immediately due and
payable. If an Event of Default with respect to the Company specified in Section 501(8) or 501(9)
with respect to Securities of any series at the time Outstanding occurs, the principal amount of
all the Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), together with any accrued and unpaid interest thereon, shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company or, if applicable, any Subsidiary Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
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(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Securities, or the property or creditors of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or any Subsidiary Guarantee or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or any Subsidiary
Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium
and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company or to such other Person as a court of competent
jurisdiction shall direct.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
35
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of security or
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or offer by the Company to purchase the
Securities pursuant to the terms of this Indenture, on the Redemption Date or purchase date, as
applicable) and, if applicable, to convert such Security in accordance with its terms, and to
institute suit for the enforcement of any such right, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Subsidiary Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any
36
other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series (including any Security which is required to have been purchased by the Company pursuant to
an offer to purchase by the Company made pursuant to the terms of this Indenture), or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series.
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.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or any Subsidiary Guarantor.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Company and the Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as expressly set forth in this
Indenture and as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term default means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the notations of Subsidiary
Guarantees, except the Trustees certificates of authentication, shall be taken as the statements
of the Company or the Subsidiary Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities or the
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Subsidiary Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or any Subsidiary Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or any Subsidiary Guarantor,
as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company and each Subsidiary Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one
series.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly
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situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Subsidiary Guarantors and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the Subsidiary Guarantors, the retiring Trustee and
each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or desirable to
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transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Subsidiary Guarantors shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. As soon as practicable, the
successor Trustee shall mail a notice of its succession to the Company and the Holders of the
Securities then Outstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.
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SECTION 613. Preferential Collection of Claims Against Company and Subsidiary Guarantors.
If and when the Trustee shall be or become a creditor of the Company, any Subsidiary Guarantor
or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company, such Subsidiary
Guarantor or any such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer, conversion
or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a Person organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such Person shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in
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Section 106 to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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[TRUSTEES NAME], As Trustee
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By: |
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As Authenticating Agent |
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By: |
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Authorized Officer |
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series:
(1) not more than 10 days after each record date with respect to the payment of interest, if
any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such record date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished. The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company and Subsidiary Guarantors.
The Company and each of the Subsidiary Guarantors shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or permit any other Person to consolidate with or
merge into the Company or, directly or indirectly, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or in which the Company transfers,
conveys, sells, leases or otherwise disposes of all or substantially all of its assets, the
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successor entity (for purposes of this Article Eight, a Successor Company) shall be a
corporation, partnership, trust or other entity organized and validly existing under the laws of
the United States of America, any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving pro forma effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such transfer, conveyance, sale,
lease or other disposition, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be permitted by this
Indenture, the Company or the Successor Company, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby;
(4) any other conditions provided pursuant to Section 301 with respect to the Securities of a
series are satisfied; and
(5) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.
Except in a transaction resulting in the release of a Subsidiary Guarantor in accordance with
the terms of this Indenture, each Subsidiary Guarantor shall not, and the Company shall not permit
any Subsidiary Guarantor to, in a single or a series of related transactions, consolidate or merge
with or into any Person (other than the Company or another Subsidiary Guarantor) or permit any
Person (other than another Subsidiary Guarantor) to consolidate or merge with or into such
Subsidiary Guarantor or, directly or indirectly, transfer, convey, sell, lease or otherwise dispose
of all or substantially all of its assets unless, in each case:
(1) in a transaction in which such Subsidiary Guarantor does not survive or in which all or
substantially all of the assets of such Subsidiary Guarantor are transferred, conveyed, sold,
leased or otherwise disposed of, the successor entity (the Successor Subsidiary Guarantor) shall
be a corporation, partnership, trust or other entity organized and validly existing under the laws
of the United States of America, any State thereof or the District of Columbia, and shall expressly
assume by an indenture supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of all obligations of such
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Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture and the performance of
every covenant of this Indenture on the part of such Subsidiary Guarantor to be performed or
observed; and
(2) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any transfer, conveyance, sale, lease or other disposition of all or substantially all of
the assets of the Company in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
(b) Upon any consolidation of a Subsidiary Guarantor with, or merger of such Subsidiary
Guarantor into, any other Person or any transfer, conveyance, sale, lease or other disposition of
all or substantially all of the assets of such Subsidiary Guarantor in accordance with Section 802,
the Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may exercise every
right and power of, such Subsidiary Guarantor under this Indenture with the same effect as if such
successor Person had been named as a Subsidiary Guarantor herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and its Subsidiary Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, the
Subsidiary Guarantors, when authorized by their respective Board Resolutions, and the Trustee, at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Subsidiary Guarantor
and the assumption by any such successor of the covenants of the Company or any Subsidiary
Guarantor herein and in the Securities or Subsidiary Guarantees, as the case may be; or
(2) to add to the covenants of the Company or the Subsidiary Guarantors 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
48
included solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company or the Subsidiary Guarantors; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become effective only when there is
no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201
and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(10) to make any other provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (10) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect; or
(11) to add new Subsidiary Guarantors.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company, the Subsidiary Guarantors and the Trustee, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by their respective
Board Resolutions and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
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eliminating any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of (a) any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or in the case of an offer to purchase Securities which has been made pursuant to a covenant
contained in this Indenture, on or after the applicable purchase date) or (b) any conversion right
with respect to any Security, or modify the provisions of this Indenture with respect to the
conversion of the Securities, in a manner adverse to the Holders, or release any Subsidiary
Guarantee other than as provided in this Indenture; or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or Section 1009, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to the Trustee and concomitant changes in this
Section and Section 1009, or the deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(8); or
(4) following the making of an offer to purchase Securities from any Holder which has been
made pursuant to a covenant contained in this Indenture, modify the provisions of this Indenture
with respect to such offer to purchase in a manner adverse to such Holder.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
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After a supplemental indenture under this Section 902 requiring the consent of the Holders of
any series of Debt Securities is approved, the Company shall mail to Holders of that series of Debt
Securities a notice briefly describing any amendment or supplement hereto effected by such
supplemental indenture. The failure to give such notice to any such Holders, or any defect
therein, shall not impair or affect the validity of any amendment or supplement hereto effected by
such supplemental indenture with respect to other Holders.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company, if applicable the notations of Subsidiary Guarantees may be endorsed thereon and such
new Securities may be authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture. Principal, premium, if
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any, and interest shall be considered paid on the date due if the Paying Agent, if other than
the Company or a Subsidiary thereof, holds as of 11:00 A.M., New York City time, on the due date
money deposited with it in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment or, if
applicable, for conversion, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company or any Subsidiary
Guarantor in respect of the Securities of that series or any Subsidiary Guarantee and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and each of the Company and the Subsidiary Guarantors
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Subsidiary Guarantor shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to 11:00 A.M., New York City time, on each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall
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agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(2) during the continuance of any default by the Company, the Subsidiary Guarantors, if applicable,
or any other obligor upon the Securities of that series in the making of any payment in respect of
the Securities of that series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Statement by Officers as to Default.
(a) The Company and the Subsidiary Guarantors will deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company ending after the date hereof, an Officers
Certificate, stating whether or not to the best knowledge of the signers thereof the Company or any
Subsidiary Guarantor, as the case may be, is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company or any Subsidiary Guarantor shall be
in default, specifying all such defaults and the nature and status thereof of which they may have
knowledge.
(b) The Company shall, so long as any series of Securities is Outstanding, deliver to the
Trustee, as soon as possible and in any event within five days after the Company becomes aware of
the occurrence of an Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers Certificate setting forth the details of such
Event of Default or default, and the action which the Company proposes to take with respect
thereto.
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SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be required to preserve
any such right or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all times all of their
properties which are of an insurable nature insured against loss or damage with insurers believed
by the Company to be responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in accordance with good
business practice.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company and the Subsidiary Guarantors may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set forth in any of
Sections 1005 through 1008 or in any covenant provided pursuant to Section 301(21), 901(2) or
901(7) for the benefit of the Holders of such series if before the time for such
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compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least five Business
Days prior to giving notice of such redemption (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, (i) in compliance
with the requirements of the principal national securities exchange on which such Securities are
listed, if such Securities are listed on any national securities exchange, and (ii) if such
Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
55
the Outstanding Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Upon any redemption of less than all the
Securities of a series, for purposes of selection for redemption the Company and the Trustee may
treat as Outstanding Securities surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as Outstanding any Security
authenticated and delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register; provided, however, notice of redemption may be
given more than 60 days prior to the Redemption Date if the notice is issued in connection with a
satisfaction and discharge pursuant to Article Four.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, if then determinable and otherwise the method of its determination,
(3) if less than all the Outstanding Securities of any series consisting of more than a single
Security are to be redeemed, the identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be redeemed and, if less than
all the Outstanding Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be surrendered for payment of the
Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) if applicable, the conversion price then in effect and the date on which the right to
convert such Securities will expire.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable. If any Security called for redemption is converted pursuant
hereto, any money deposited with the Trustee or any Paying Agent or so segregated and held in trust
for the redemption of such Security shall be paid to the Company upon delivery of a Company Request
to the Trustee or such Paying Agent, or, if then held by the Company, shall be discharged from such
trust.
SECTION 1105. Deposit of Redemption Price.
Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, if
applicable, the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon, 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 like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEES
SECTION 1301. Applicability of Article.
Unless the Company elects to issue any series of Securities without the benefit of the
Subsidiary Guarantees, which election shall be evidenced in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities pursuant to Section 301, the
provisions of this Article shall be applicable to each series of Securities except as otherwise
specified in or pursuant to the Board Resolution or supplemental indenture establishing such series
pursuant to Section 301.
SECTION 1302. Subsidiary Guarantees.
Subject to Section 1301, each Subsidiary Guarantor hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on such
Security when and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance with the terms of
such Security and of this Indenture, and each Subsidiary Guarantor similarly guarantees to the
Trustee the payment of all amounts owing to the Trustee in accordance with the terms of this
Indenture. In case of the failure of the Company punctually to make any such payment, each
Subsidiary Guarantor hereby, jointly and severally, agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, offer to purchase or otherwise, and as if such payment were made
by the Company.
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Each of the Subsidiary Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute, unconditional, irrespective of, and shall be unaffected
by, the validity, regularity or enforceability of such Security or this Indenture, the absence of
any action to enforce the same or any release, amendment, waiver or indulgence granted to the
Company or any other guarantor or any consent to departure from any requirement of any other
guarantee of all or any of the Securities of such series or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided,
however, that, notwithstanding the foregoing, no such release, amendment, waiver or indulgence
shall, without the consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity thereof. Each of the
Subsidiary Guarantors hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged in
respect of such Security except by complete performance of the obligations contained in such
Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to accelerate the maturity of
the Securities of a series, to collect interest on the Securities of a series, or to enforce or
exercise any other right or remedy with respect to the Securities of a series, such Subsidiary
Guarantor agrees to pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Securities
upon which its Subsidiary Guarantee is endorsed against the Company in respect of any amounts paid
by such Subsidiary Guarantor on account of such Security pursuant to the provisions of its
Subsidiary Guarantee or this Indenture; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantor that makes or is required to make any payment in respect of its
Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to
the extent permitted by applicable law; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
contribution until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Companys assets,
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and shall, to the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities of a series, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any Holder of the Securities, whether as a voidable preference, fraudulent
transfer, or otherwise, all as though such payment or performance had not been made. In the event
that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities
shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
SECTION 1303. Execution and Delivery of Notations of Subsidiary Guarantees.
To further evidence the Subsidiary Guarantee set forth in Section 1302, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Subsidiary Guarantee, substantially in
the form set forth in Section 204, shall be endorsed on each Security entitled to the benefits of
the Subsidiary Guarantee authenticated and delivered by the Trustee and executed by either manual
or facsimile signature of an officer of such Subsidiary Guarantor, or in the case of a Subsidiary
Guarantor that is a limited partnership, an officer of the general partner of each Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that the Subsidiary Guarantee set forth
in Section 1302 shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation relating to the Subsidiary Guarantee. If any officer of the Subsidiary
Guarantor, or in the case of a Subsidiary Guarantor that is a limited partnership, any officer of
the general partner of the Subsidiary Guarantor, whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such Security or at any time
thereafter, the Subsidiary Guarantee of such Security shall be valid nevertheless. The delivery of
any Security by the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
SECTION 1304. Release of Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a series of Securities,
each Subsidiary Guarantee will remain in effect with respect to the respective Subsidiary Guarantor
until the entire principal of, premium, if any, and interest on the Securities to which such
Subsidiary Guarantee relates shall have been paid in full or otherwise satisfied and discharged in
accordance with the provisions of such Securities and this Indenture and all amounts owing to the
Trustee hereunder have been paid; provided, however, that if (i) such Subsidiary Guarantor ceases
to be a Subsidiary in compliance with the applicable provisions of this Indenture, (ii) either
Defeasance or Covenant Defeasance occurs with respect to such Securities pursuant to Article
Fifteen or (iii) all or substantially all of the assets of such Subsidiary Guarantor or all of the
Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the requirements of
this Indenture, then, in each case of (i), (ii) or (iii), upon delivery by the Company of an
Officers Certificate and an Opinion of Counsel stating that all conditions precedent herein
provided for relating to the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee and this Article Thirteen have been complied with, such Subsidiary Guarantor
shall be released and discharged of its obligations under its Subsidiary Guarantee and under this
Article Thirteen without any action on the part of the
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Trustee or any Holder, and the Trustee shall execute any documents reasonably required in
order to acknowledge the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee endorsed on the Securities of such series and under this Article Thirteen.
SECTION 1305. Additional Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a series of Securities, the
Company will cause any domestic Wholly Owned Subsidiary of the Company that becomes a Subsidiary
after the date the Securities of a series are first issued hereunder to become a Subsidiary
Guarantor as soon as practicable after such Subsidiary becomes a Subsidiary. The Company shall
cause any such Wholly Owned Subsidiary to become a Subsidiary Guarantor with respect to the
Securities by executing and delivering to the Trustee (a) a supplemental indenture, in form and
substance satisfactory to the Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized and executed by
such Person and such supplemental indenture and such Persons obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and enforceable obligations of
such Person (subject to such customary exceptions concerning creditors rights and equitable
principles as may be acceptable to the Trustee in its discretion).
SECTION 1306. Limitation on Liability.
Any term or provision of this Indenture to the contrary notwithstanding, the maximum amount of
the Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed the maximum amount that can
be hereby guaranteed by such Subsidiary Guarantor without rendering such Subsidiary Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1502 or 1503, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced in or pursuant to a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities.
61
SECTION 1502. Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and each Subsidiary Guarantor shall be deemed to have been
discharged from its obligations with respect to its Subsidiary Guarantee of such Securities, as
provided in this Section on and after the date the conditions set forth in Section 1504 are
satisfied (herein called Defeasance). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by such Securities
and to have satisfied all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 1504 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on such Securities when
payments are due, or, if applicable, to convert such Securities in accordance with their terms, (2)
the Companys and each Subsidiary Guarantors obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, and, if applicable, their obligations with respect to the
conversion of such Securities, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1503 applied to such Securities.
SECTION 1503. Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Section 801(3), Sections 1006 through 1008, inclusive, and any covenants
provided pursuant to Section 301(21), 901(2) or 901(7) for the benefit of the Holders of such
Securities, and (2) the occurrence of any event specified in Sections 501(5) (with respect to any
of Section 801(3), Sections 1006 through 1008, inclusive, and any such covenants provided pursuant
to Section 301(21), 901(2) or 901(7)), 501(6), 501(7)), 501(10) and 501(11) shall be deemed not to
be or result in an Event of Default and (3) the provisions of Article Thirteen shall cease to be
effective, in each case with respect to such Securities and Subsidiary Guarantees as provided in
this Section on and after the date the conditions set forth in Section 1504 are satisfied (herein
called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect
to such Securities, the Company and the Subsidiary Guarantors, as applicable, may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section 501(5)) or Article
Thirteen, whether directly or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article to any other
provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
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SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1502 or Section 1503 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, U.S. Government Obligation means
(x) any security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1502 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit and
Defeasance were not to occur.
(3) In the event of an election to have Section 1503 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or
63
loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(7) and (8), at any time on or
prior to the 121st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 121st day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company or any
Subsidiary is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
such deposit shall not cause either the Trustee or the trust so created to be subject to the
Investment Company Act of 1940.
(9) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
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SECTION 1505. |
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Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions. |
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1506, the Trustee and any such other trustee are
referred to collectively as the Trustee) pursuant to Section 1504 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section
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1504 or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 1504 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1505 with respect
to such Securities in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a mandatory sinking fund payment, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an optional sinking
fund payment. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1602. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been (x)
converted or (y) redeemed either at the election of the Company pursuant to the terms of
65
such Securities or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to any Securities of such series required to be made pursuant to
the terms of such Securities as and to the extent provided for by the terms of such Securities;
provided, however, that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1603. Redemption of Securities for Sinking Fund.
Not less than 35 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1602 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 32 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107. This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same instrument.
66
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
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ISSUER:
MITCHAM INDUSTRIES, INC.
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By: |
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Name: |
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Title: |
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SUBSIDIARY GUARANTORS:
[SUBSIDIARY GUARANTORS]
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By: |
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Name: |
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Title: |
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TRUSTEE:
[TRUSTEES NAME], as Trustee
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By: |
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Name: |
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Title: |
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[Signature Page to Senior Indenture]
SCHEDULE I
SUBSIDIARY GUARANTORS
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SUBSIDIARY |
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STATE OF ORGANIZATION |
[Insert Subsidiary Guarantors] |
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Schedule I
exv4w2
Exhibit 4.2
MITCHAM INDUSTRIES, INC.,
as Issuer
AND
ANY SUBSIDIARY GUARANTORS PARTIES HERETO,
as Subsidiary Guarantors
TO
[TRUSTEES NAME],
as Trustee
SUBORDINATED INDENTURE
Dated as of ____________, 20__
TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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1 |
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SECTION 101. Definitions |
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1 |
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SECTION 102. Compliance Certificates and Opinions |
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7 |
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SECTION 103. Form of Documents Delivered to Trustee |
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8 |
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SECTION 104. Acts of Holders; Record Dates |
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8 |
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SECTION 105. Notices, Etc., to Trustee and Company |
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11 |
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SECTION 106. Notice to Holders; Waiver |
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11 |
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SECTION 107.
Conflict with Trust Indenture Act |
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11 |
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SECTION 108. Effect of Headings and Table of Contents |
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12 |
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SECTION 109. Successors and Assigns |
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12 |
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SECTION 110. Separability Clause |
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12 |
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SECTION 111. Benefits of Indenture |
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12 |
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SECTION 112. Governing Law |
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12 |
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SECTION 113. Legal Holidays |
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12 |
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SECTION 114. No Recourse Against Others |
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12 |
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ARTICLE TWO SECURITY FORMS |
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13 |
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SECTION 201. Forms Generally |
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13 |
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SECTION 202. Form of Face of Security |
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13 |
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SECTION 203. Form of Reverse of Security |
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15 |
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SECTION 204. Form of Notation of Subsidiary Guarantee |
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19 |
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SECTION 205. Form of Legend for Global Securities |
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19 |
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SECTION 206. Form of Trustees Certificate of Authentication |
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19 |
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SECTION 207. Form of Conversion Notice |
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20 |
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ARTICLE THREE THE SECURITIES |
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21 |
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SECTION 301. Amount Unlimited; Issuable in Series |
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21 |
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SECTION 302. Denominations |
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23 |
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SECTION 303. Execution, Authentication, Delivery and Dating |
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23 |
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SECTION 304. Temporary Securities |
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25 |
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SECTION 305. Registration, Registration of Transfer and Exchange |
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25 |
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities |
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27 |
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SECTION 307. Payment of Interest; Interest Rights Preserved |
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28 |
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SECTION 308. Persons Deemed Owners |
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29 |
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SECTION 309. Cancellation |
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SECTION 310. Computation of Interest |
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29 |
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ARTICLE FOUR SATISFACTION AND DISCHARGE |
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30 |
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SECTION 401. Satisfaction and Discharge of Indenture |
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30 |
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SECTION 402. Application of Trust Money |
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31 |
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ARTICLE FIVE REMEDIES |
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31 |
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SECTION 501. Events of Default |
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31 |
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SECTION 502. Acceleration of Maturity; Rescission and Annulment |
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33 |
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee |
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34 |
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SECTION 504. Trustee May File Proofs of Claim |
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities |
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35 |
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SECTION 506. Application of Money Collected |
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35 |
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SECTION 507. Limitation on Suits |
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35 |
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest |
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36 |
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SECTION 509. Restoration of Rights and Remedies |
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36 |
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SECTION 510. Rights and Remedies Cumulative |
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36 |
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SECTION 511. Delay or Omission Not Waiver |
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37 |
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SECTION 512. Control by Holders |
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37 |
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SECTION 513. Waiver of Past Defaults |
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37 |
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SECTION 514. Undertaking for Costs |
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38 |
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SECTION 515. Waiver of Usury, Stay or Extension Laws |
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38 |
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ARTICLE SIX THE TRUSTEE |
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38 |
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SECTION 601. Certain Duties and Responsibilities |
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SECTION 602. Notice of Defaults |
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SECTION 603. Certain Rights of Trustee |
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39 |
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SECTION 604. Not Responsible for Recitals or Issuance of Securities |
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SECTION 605. May Hold Securities |
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40 |
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SECTION 606. Money Held in Trust |
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40 |
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SECTION 607. Compensation and Reimbursement |
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SECTION 608. Conflicting Interests |
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SECTION 609. Corporate Trustee Required; Eligibility |
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SECTION 610. Resignation and Removal; Appointment of Successor |
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SECTION 611. Acceptance of Appointment by Successor |
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business |
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SECTION 613. Preferential Collection of Claims Against Company and Subsidiary Guarantors |
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SECTION 614. Appointment of Authenticating Agent |
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY |
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45 |
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SECTION 701. Company to Furnish Trustee Names and Addresses of Holders |
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SECTION 702. Preservation of Information; Communications to Holders |
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SECTION 703. Reports by Trustee |
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SECTION 704. Reports by Company and Subsidiary Guarantors |
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ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
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46 |
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SECTION 801. Company May Consolidate, Etc., Only on Certain Terms |
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SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms |
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SECTION 803. Successor Substituted |
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48 |
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ARTICLE NINE SUPPLEMENTAL INDENTURES |
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48 |
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SECTION 901. Supplemental Indentures Without Consent of Holders |
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SECTION 902. Supplemental Indentures With Consent of Holders |
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SECTION 903. Execution of Supplemental Indentures |
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SECTION 904. Effect of Supplemental Indentures |
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SECTION 905.
Conformity with Trust Indenture Act |
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SECTION 906. Reference in Securities to Supplemental Indentures |
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51 |
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ARTICLE TEN COVENANTS |
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52 |
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SECTION 1001. Payment of Principal, Premium and Interest |
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SECTION 1002. Maintenance of Office or Agency |
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SECTION 1003. Money for Securities Payments to Be Held in Trust |
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SECTION 1004. Statement by Officers as to Default |
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53 |
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SECTION 1005. Existence |
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54 |
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SECTION 1006. Maintenance of Properties |
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54 |
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SECTION 1007. Payment of Taxes and Other Claims |
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54 |
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SECTION 1008. Maintenance of Insurance |
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55 |
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SECTION 1009. Waiver of Certain Covenants |
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55 |
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ARTICLE ELEVEN REDEMPTION OF SECURITIES |
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55 |
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SECTION 1101. Applicability of Article |
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55 |
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SECTION 1102. Election to Redeem; Notice to Trustee |
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed |
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56 |
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SECTION 1104. Notice of Redemption |
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56 |
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SECTION 1105. Deposit of Redemption Price |
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57 |
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SECTION 1106. Securities Payable on Redemption Date |
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57 |
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SECTION 1107. Securities Redeemed in Part |
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58 |
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ARTICLE TWELVE SUBORDINATION OF SECURITIES |
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58 |
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SECTION 1201. Applicability of Article |
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58 |
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SECTION 1202. Securities Subordinate to Senior Debt |
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58 |
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SECTION
1203. Payment Over of Proceeds Upon Dissolution, Etc. |
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59 |
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SECTION 1204. No Payment When Senior Debt of the Company in Default |
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60 |
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SECTION 1205. Payment Permitted If No Default |
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61 |
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SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company |
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61 |
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SECTION 1207. Provisions Solely to Define Relative Rights |
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SECTION 1208. Trustee to Effectuate Subordination |
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62 |
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SECTION 1209. No Waiver of Subordination Provisions |
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62 |
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SECTION 1210. Notice to Trustee |
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62 |
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SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent |
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63 |
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SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company |
|
|
63 |
|
SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company; Preservation of
Trustees Rights |
|
|
64 |
|
SECTION 1214. Article Applicable to Paying Agents |
|
|
64 |
|
SECTION 1215. Defeasance of this Article Twelve |
|
|
64 |
|
iii
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|
Page |
|
ARTICLE THIRTEEN SUBSIDIARY GUARANTEES |
|
|
64 |
|
|
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|
SECTION 1301. Applicability of Article |
|
|
64 |
|
SECTION 1302. Subsidiary Guarantees |
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64 |
|
SECTION 1303. Execution and Delivery of Notations of Subsidiary Guarantees |
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66 |
|
SECTION 1304. Release of Subsidiary Guarantors |
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|
67 |
|
SECTION 1305. Additional Subsidiary Guarantors |
|
|
67 |
|
SECTION 1306. Limitation on Liability |
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|
67 |
|
|
|
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|
|
ARTICLE FOURTEEN SUBORDINATION OF SUBSIDIARY GUARANTEES |
|
|
68 |
|
|
|
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|
|
SECTION 1401. Applicability of Article |
|
|
68 |
|
SECTION 1402. Subsidiary Guarantees Subordinate to Senior Debt of Subsidiary Guarantors |
|
|
68 |
|
SECTION
1403. Payment Over of Proceeds Upon Dissolution, Etc. |
|
|
68 |
|
SECTION 1404. No Payment When Senior Debt of such Subsidiary Guarantor in Default |
|
|
69 |
|
SECTION 1405. Payment Permitted If No Default |
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|
70 |
|
SECTION 1406. Subrogation to Rights of Holders of Senior Debt of such Subsidiary Guarantor |
|
|
70 |
|
SECTION 1407. Provisions Solely to Define Relative Rights |
|
|
71 |
|
SECTION 1408. Trustee to Effectuate Subordination |
|
|
71 |
|
SECTION 1409. No Waiver of Subordination Provisions |
|
|
71 |
|
SECTION 1410. Notice to Trustee |
|
|
72 |
|
SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating Agent |
|
|
72 |
|
SECTION 1412. Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary Guarantor |
|
|
73 |
|
SECTION 1413. Rights of Trustee as Holder of Senior Debt of such Subsidiary Guarantor;
Preservation of Trustees Rights |
|
|
73 |
|
SECTION 1414. Article Applicable to Paying Agents |
|
|
73 |
|
SECTION 1415. Defeasance of this Article Fourteen |
|
|
73 |
|
|
|
|
|
|
ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE |
|
|
74 |
|
|
|
|
|
|
SECTION 1501. Companys Option to Effect Defeasance or Covenant Defeasance |
|
|
74 |
|
SECTION 1502. Defeasance and Discharge |
|
|
74 |
|
SECTION 1503. Covenant Defeasance |
|
|
74 |
|
SECTION 1504. Conditions to Defeasance or Covenant Defeasance |
|
|
75 |
|
SECTION 1505. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions |
|
|
77 |
|
SECTION 1506. Reinstatement |
|
|
77 |
|
|
|
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|
|
ARTICLE SIXTEEN SINKING FUNDS |
|
|
78 |
|
|
|
|
|
|
SECTION 1601. Applicability of Article |
|
|
78 |
|
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities |
|
|
78 |
|
SECTION 1603. Redemption of Securities for Sinking Fund |
|
|
78 |
|
|
|
|
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|
Schedule I Subsidiary Guarantors |
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iv
MITCHAM INDUSTRIES, INC.
RECONCILIATION AND TIE OF CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH
318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
Section 310 |
(a)(1) |
|
609 |
|
(a)(2) |
|
609 |
|
(a)(3) |
|
Not Applicable |
|
(a)(4) |
|
Not Applicable |
|
(b) |
|
608, 610 |
|
Section 311 |
(a) |
|
613 |
|
(b) |
|
613 |
|
Section 312 |
(a) |
|
701, 702 |
|
(b) |
|
702 |
|
(c) |
|
702 |
|
Section 313 |
(a) |
|
703 |
|
(b) |
|
703 |
|
(c) |
|
703 |
|
(d) |
|
703 |
|
Section 314 |
(a) |
|
704 |
|
(a)(4) |
|
101, 1004 |
|
(b) |
|
Not Applicable |
|
(c)(1) |
|
102 |
|
(c)(2) |
|
102 |
|
(c)(3) |
|
Not Applicable |
|
(d) |
|
Not Applicable |
|
(e) |
|
102 |
|
Section 315 |
(a) |
|
601 |
|
(b) |
|
602 |
|
(c) |
|
601 |
|
(d) |
|
601 |
|
(e) |
|
514 |
|
Section 316 |
(a) |
|
101 |
|
(a)(1)(A) |
|
502, 512 |
|
(a)(1)(B) |
|
513 |
|
(a)(2) |
|
Not Applicable |
|
(b) |
|
508 |
|
(c) |
|
104 |
v
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
Section 317 |
(a)(1) |
|
503 |
|
(a)(2) |
|
504 |
|
(b) |
|
1003 |
|
Section 318 |
(a) |
|
107 |
|
|
|
NOTE: |
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture. |
vi
INDENTURE, dated as of ___________, 20__, among MITCHAM INDUSTRIES, INC., a corporation duly
organized and existing under the laws of the State of Texas (herein called the Company), having
its principal office at 8141 SH 75 South, P.O. Box 1175, Huntsville, Texas 77342, each of the
SUBSIDIARY GUARANTORS (as hereinafter defined) parties hereto and [TRUSTEES NAME], a [___________]
duly organized and existing under the laws of [____________], as Trustee (herein called the
Trustee).
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
The Company and the Subsidiary Guarantors are members of the same consolidated group of
companies. The Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each Subsidiary Guarantor has duly authorized the
execution and delivery of this Indenture to provide for its full, unconditional and joint and
several guarantee of the Securities to the extent provided in or pursuant to this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to
1
any computation required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument;
(4) unless the context otherwise requires, any reference to an Article or a Section refers
to an Article or a Section, as the case may be, of this Indenture;
(5) the words herein, hereof, hereunder and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision; and
(6) unsecured Debt shall not be deemed to be subordinate or junior to secured Debt merely by
virtue of its nature as unsecured Debt.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing; provided that direct or indirect
beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means, with respect to the Company, either the board of directors of the
Company or any committee of that board duly authorized to act for it in respect hereof, and with
respect to any Subsidiary Guarantor, either the board of directors of such Subsidiary Guarantor or
any committee of that board duly authorized to act for it in respect hereof.
Board Resolution means, with respect to the Company or a Subsidiary Guarantor, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company or such Subsidiary
Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Capital Stock of any Person means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person.
Commission means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
2
Common Stock means the common stock, $0.01 par value, of the Company as the same exists at
the date of execution and delivery of this Indenture or other Capital Stock of the Company into
which such common stock is converted, reclassified or changed from time to time.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
Conversion Agent means any Person authorized by the Company to convert any Securities on
behalf of the Company.
Corporate Trust Office means the principal office of the Trustee in [____________,
____________] at which at any particular time its corporate trust business shall be administered,
such office being located on the date hereof at [TRUSTEES ADDRESS].
corporation means a corporation, association, limited liability company, joint-stock company
or business trust.
Covenant Defeasance has the meaning specified in Section 1503.
Debt of any Person at any date means any obligation created, assumed or guaranteed by such
Person for the repayment of borrowed money.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1502.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Global Security means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 205 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
Holder means a Person in whose name a Security is registered in the Security Register.
3
Indenture means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Investment Company Act means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 501(5).
Officers Certificate means a certificate signed by the Chairman of the Board of Directors,
a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or a Subsidiary
Guarantor, as the case may be, and delivered to the Trustee. One of the officers signing an
Officers Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
Opinion of Counsel means, as to the Company or a Subsidiary Guarantor, a written opinion of
counsel, who may be counsel for the Company or such Subsidiary Guarantor, as the case may be, and
who shall be acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own
4
Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1502; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security described in clause
(A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by
the Company, any Subsidiary Guarantor or any other obligor upon the Securities or any Affiliate of
the Company, any Subsidiary Guarantor or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, a Subsidiary Guarantor or of such other
obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
5
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Senior Debt with respect to any series of Securities shall have the meaning specified as
contemplated by Section 301.
Significant Subsidiary means, at any date of determination, any Subsidiary that represents
10% or more of the Companys consolidated total assets at the end of the most recent fiscal quarter
for which financial information is available or 10% or more of the Companys consolidated net
revenues or consolidated operating income for the most recent four quarters for which financial
information is available.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of any Person means (1) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or
(2) any other Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
6
thereof, directly or indirectly, has at least a majority ownership and power to direct the
policies, management and affairs thereof.
Subsidiary Guarantees means the guarantees of each Subsidiary Guarantor as provided in
Article Thirteen.
Subsidiary Guarantors means (i) the subsidiaries listed in Schedule I hereto; (ii)
each other Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance with Section
1305 hereof and (iii) any successor of the foregoing, in each case (i), (ii) and (iii) until such
Subsidiary Guarantor ceases to be such in accordance with Section 1304 hereof.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation has the meaning specified in Section 1504.
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Voting Stock of any Person means Capital Stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such voting power by
reason of any contingency.
Wholly Owned Subsidiary of any Person means a Subsidiary of such Person all of the
outstanding Capital Stock of which (other than directors qualifying shares) shall at the time be
owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company and/or such Subsidiary
Guarantor, as appropriate, shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers Certificate, if to be given by an officer of the Company or a Subsidiary
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with
7
the requirements of the Trust Indenture Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Subsidiary Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or such Subsidiary Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or such Subsidiary Guarantor,
unless such counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities of any or all series may take action (including the
making of any demand or request, the giving of any direction, notice, consent or waiver or the
8
taking of any other action) the fact that at the time of taking any such action the Holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with procedures approved by the Trustee, (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders or (d) in the case of
Securities evidenced by a Global Security, by any electronic transmission or other message, whether
or not in written format, that complies with the Depositarys applicable procedures. Such evidence
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
Act of the relevant Holders. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
9
requisite principal amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Companys expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the Expiration Date and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
10
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:
(1) the Trustee by any Holder or by the Company or any Subsidiary Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing in the English
language to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department; or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
in the English language and mailed, first-class postage prepaid, in the case of the Company
addressed to it at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the Company
and, in the case of any Subsidiary Guarantor, to it at the address of the Companys principal
office specified in the first paragraph of this instrument, Attention: Chief Financial Officer, or
at any other address previously furnished in writing to the Trustee by such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing in the English
language and mailed, first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.
11
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any Subsidiary Guarantor
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, the Securities or the Subsidiary Guarantees shall be
invalid, illegal or unenforceable, the validity, legality and enforce ability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Subsidiary Guarantees, express or implied,
shall give to any Person, other than the parties hereto and their successors hereunder, the holders
of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, purchase date or Stated Maturity
of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date or purchase date, or at the
Stated Maturity.
SECTION 114. No Recourse Against Others.
The directors, officers, employees and stockholders of the Company and, if applicable, the
Subsidiary Guarantors, as such, shall have no liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantees of this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a
Security, each Holder shall be deemed to have waived and released all such liability. The waiver
and release shall be a part of the consideration for the issue of the Securities.
12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and, if applicable, the notations of Subsidiary Guarantees to be
endorsed thereon shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or Depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
Mitcham Industries, Inc.
Mitcham Industries, Inc., a corporation duly organized and existing under the laws of Texas
(herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ___________________, or
registered assigns, the principal sum of ________ Dollars on ___________________ [if the Security
is to bear interest prior to Maturity, insert , and to pay interest thereon from
___________________ or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on ___________________ and ___________________ in each year,
commencing ___________________, at the rate of ___% per annum, until the principal hereof is paid
or made available for payment, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest, which shall be the ___________________ or ___________________ (whether or not a
Business Day), as the
13
case may be, next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in ___________________, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed [under its
corporate seal].
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Dated: |
MITCHAM INDUSTRIES, INC.
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By: |
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[Attest: ]
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SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
___________________, 20___ (herein called the Indenture, which term shall have the meaning
assigned to it in such instrument), among the Company, the Subsidiary Guarantors named therein and
[TRUSTEES NAME], as Trustee (herein called the Trustee, which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee, the holders of Senior Debt and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable, insert , limited in
aggregate principal amount to $___________].
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days notice by mail, [if applicable, insert (1) on
___________________ in any year commencing with the year ___ and ending with the year ___ through
operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [if applicable, insert on or after ___________________, 20___], as
a whole or in part, at the election of the Company, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert on or before
___________________, ___%, and if redeemed] during the 12-month period beginning
___________________ of the years indicated,
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Redemption |
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption [if applicable, insert (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days notice by mail, (1) on ___________________ in any year
commencing with the year ___ and ending with the year ___ through operation of the sinking fund for
this series at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below, and (2) at any
time [if applicable, insert on or after ___________________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ___________________ of the years
indicated,
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Redemption Price for Redemption |
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert Notwithstanding the foregoing, the Company may not, prior to
___________________, redeem any Securities of this series as contemplated by [if applicable, insert
clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having an interest cost to
the Company (calculated in accordance with generally accepted financial practice) of less than ___%
per annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
___________________ in each year beginning with the year ________ and ending with the year _______
of [if applicable, insert not less than $_____________ (mandatory sinking fund) and not more
than] $____________ aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if applicable, insert
mandatory] sinking fund payments may be credited against subsequent [if applicable, insert
mandatory] sinking fund payments otherwise required to be made [if applicable, insert , in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[If the Security is subject to conversion, insert Subject to the provisions of the
Indenture, the Holder has the right to convert the principal amount of this Security into fully
paid and nonassessable shares of Common Stock of the Company at the initial conversion price per
share of Common Stock of $___________ (or $___________ in principal amount of Securities for each
such share of Common Stock), or at the adjusted conversion price then in effect, if adjustment has
been made as provided in the Indenture, upon surrender of the Security to the Conversion Agent,
together with a fully executed notice in substantially the form attached hereto and, if required by
the Indenture, an amount equal to accrued interest payable on this Security.]
The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all Senior Debt of the
Company, and this Security is issued subject to the provisions of the Indenture with respect
16
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.
[If applicable, insert As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are guaranteed on a senior
subordinated basis pursuant to the Indenture as indicated in the notation of Subsidiary Guarantee
endorsed hereon. The Indenture provides that a Subsidiary Guarantor shall be released from its
Subsidiary Guarantee upon compliance with certain conditions.]
[If applicable, insert The Indenture contains provisions for Defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Companys obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
17
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less than 25% in principal amount of
the Securities of this series at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable security or indemnity, and the Trustee shall not have received from the Holders
of a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein [if
applicable, insert or the right to convert this Security in accordance with its terms].
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed [if applicable, insert and to convert this Security in
accordance with its terms].
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $_______________ and any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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SECTION 204. Form of Notation of Subsidiary Guarantee.
NOTATION OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article Thirteen
of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee.
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[Insert Names of Subsidiary Guarantors]
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By: |
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Title: |
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SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 206. Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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[TRUSTEES NAME],
as Trustee
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By: |
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Authorized Officer |
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SECTION 207. Form of Conversion Notice.
Each convertible Security shall have attached thereto, or set forth on the reverse of the
Security, a notice of conversion in substantially the following form:
Conversion Notice
To: Mitcham Industries, Inc.
The undersigned owner of this Security hereby: (i) irrevocably exercises the option to
convert this Security, or the portion hereof below designated, for shares of Common Stock of
Mitcham Industries, Inc. in accordance with the terms of the Indenture referred to in this Security
and (ii) directs that such shares of Common Stock deliverable upon the conversion, together with
any check in payment for fractional shares and any Security(ies) representing any unconverted
principal amount hereof, be issued and delivered to the registered holder hereof unless a different
name has been indicated below. If shares are to be delivered registered in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of interest accompanies this
Security.
Fill in for registration of shares if to be delivered, and of Securities if to be issued,
otherwise than to and in the name of the registered holder.
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Social Security or other |
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Taxpayer Identification Number |
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(Please print name and address)
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Principal amount to be converted: (if less than all) |
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Signature Guarantee* |
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Participant in a recognized Signature Guarantee Medallion Program (or other
signature acceptable to the Trustee). |
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);
(2) if the Securities of the series will not have the benefit of the Subsidiary Guarantees of
the Subsidiary Guarantors;
(3) any change to the subordination provisions which applies to the Securities of the series
from those contained in Article Twelve with respect to the Securities and/or, if applicable, those
contained in Article Fourteen with respect to the Subsidiary Guarantees, and the definitions of
Senior Debt and Designated Senior Debt which shall apply to the Securities of the series, and, if
applicable, the Subsidiary Guarantees;
(4) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered hereunder);
(5) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(6) the date or dates on which the principal of any Securities of the series is payable;
(7) the rate or rates at which any Securities of the series shall bear interest, if any, the
date or dates from which any such interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(8) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;
(9) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
21
option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(10) the obligation, if any, of the Company to redeem or purchase any Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(11) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;
(12) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;
(13) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of Outstanding in
Section 101;
(14) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(15) if other than the entire principal amount thereof, the portion of the principal amount of
any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(16) if the principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(17) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 1502 or Section 1503 or both such Sections and, if other than by
a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
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(18) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and any circumstances in
addition to or in lieu of those set forth in clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;
(19) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 502;
(20) any addition to or change in the covenants set forth in Article Ten which applies to
Securities of the series;
(21) whether the Securities of the series will be convertible into Common Stock (or cash in
lieu thereof) and, if so, the terms and conditions upon which such conversion will be effected; and
(22) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
The Securities of each series shall have the benefit of the Subsidiary Guarantees unless the
Company elects otherwise upon the establishment of a series pursuant to this Section 301.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice
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Presidents. If its corporate seal is reproduced thereon, then it shall be attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company and, if applicable, having
endorsed thereon the notations of Subsidiary Guarantees executed as provided in Section 1303 by the
Subsidiary Guarantors to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of the Securities of
the series have been established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) 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 legally binding obligations of the Company, and, if applicable, the notations
of Subsidiary Guarantees endorsed thereon will constitute valid and legally binding obligations of
the Subsidiary Guarantors, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
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prior to the authentication of each Security of such series if such documents are delivered at
or prior to the authentication upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities and, if applicable, having
endorsed thereon the notations of Subsidiary Guarantees in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities and, if applicable, notations of Subsidiary Guarantees may determine, as
evidenced by their execution of such Securities and notations of Subsidiary Guarantees.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount and, if applicable, having endorsed thereon the notations of
Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
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hereby appointed Security Registrar for the purpose of registering Securities and transfers
of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, if
applicable the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon and the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the notations of Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or otherwise not involving any
transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, and in either case the Company fails to appoint
a successor Depositary within 90 days, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security and the Depositary shall have notified the Trustee of
its decision to exchange such Global Security for Securities in certificated form, (C) subject to
the rules of the Depositary, the Company shall have elected to terminate the book-entry system
through the Depositary or (D) there shall exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.
(3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding, and, if
applicable, the Subsidiary Guarantors shall execute the notation of Subsidiary Guarantee endorsed
thereon.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless from any loss that
any of them may suffer if a Security is replaced, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a protected purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, and, if applicable, the Subsidiary Guarantors
shall execute the notation of Subsidiary Guarantee endorsed thereon.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable or is to be converted, the Company in its discretion may, instead of issuing
a new Security, pay or authorize the conversion of such Security (without surrender thereof save in
the case of a mutilated Security).
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Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement, payment or conversion of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record
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Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary Guarantors, or the
Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee nor any
agent of the Company, any Subsidiary Guarantor, or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in
accordance with its standard procedures, unless as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to the
Securities of any series, and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i)
Securities of such series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such 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 the Company or, if applicable, a Subsidiary Guarantor, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient, without consideration of any reinvestment of interest,
to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company and the Subsidiary Guarantors with respect to the Securities of such
series; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Company with respect to the
Securities of such series under Sections 304, 305, 306, 1002 and 1003, any surviving rights of
conversion, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Twelve or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series
at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach, of any covenant of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of such
series, any Subsidiary Guarantor in Article Eight of this Indenture; or
(5) default in the performance, or breach, of any covenant or warranty of the Company or, if
the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of such
series, any Subsidiary Guarantor in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a Notice of Default hereunder; or
(6) any Debt of the Company, any Significant Subsidiary or, if the Subsidiary Guarantors have
issued Subsidiary Guarantees with respect to the Securities of such series, any Subsidiary
Guarantor is not paid within any applicable grace period after final maturity or is
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accelerated by the holders thereof because of a default and the total amount of such Debt
unpaid or accelerated exceeds $20.0 million, or its foreign currency equivalent at the time; or
(7) any judgment or decree for the payment of money in excess of $20.0 million or its foreign
currency equivalent at the time it is entered against the Company, any Significant Subsidiary or,
if the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of
such series, any Subsidiary Guarantor, remains outstanding for a period of 60 consecutive days
following the entry of such judgment or decree and is not discharged, waived or the execution
thereof stayed; or
(8) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company, any Significant Subsidiary or, if the Subsidiary Guarantors have
issued Subsidiary Guarantees with respect to the Securities of such series, any Subsidiary
Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company, any
Significant Subsidiary or any such Subsidiary Guarantor a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company, any Significant Subsidiary or any such Subsidiary Guarantor under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, any Significant Subsidiary or any
such Subsidiary Guarantor or of any substantial part of its or their property, or ordering the
winding up or liquidation of its or their affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the commencement by the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities of such series, any
Subsidiary Guarantor of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it or them to the entry of a decree or
order for relief in respect of the Company, any Significant Subsidiary or any such Subsidiary
Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it or them, or the filing by it or them of a petition or
answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it or them to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, any Significant Subsidiary or any such Subsidiary Guarantor or of any
substantial part of its or their property, or the making by it or them of an assignment for the
benefit of creditors, or the admission by it or them in writing of its or their inability to pay
its or their debts generally as they become due, or the taking of corporate action by the Company,
any Significant Subsidiary or any such Subsidiary Guarantor in furtherance of any such action; or
(10) in the event the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to
the Securities of such series, the Subsidiary Guarantee of any Subsidiary Guarantor is held by a
final non-appealable order or judgment of a court of competent jurisdiction to be
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unenforceable or invalid or ceases for any reason to be in full force and effect (other than
in accordance with the terms of this Indenture) or any Subsidiary Guarantor or any Person acting on
behalf of any Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantors obligations
under its Subsidiary Guarantee (other than by reason of a release of such Subsidiary Guarantor from
its Subsidiary Guarantee in accordance with the terms of this Indenture); or
(11) any other Event of Default provided with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default with respect to the Company specified
in Section 501(8) or 501(9)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series may declare the principal amount
of all the Securities of that series (or, if any Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified by
the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount), together with any accrued and unpaid interest thereon, shall become immediately due and
payable. If an Event of Default with respect to the Company specified in Section 501(8) or 501(9)
with respect to Securities of any series at the time Outstanding occurs, the principal amount of
all the Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), together with any accrued and unpaid interest thereon, shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company or, if applicable, any Subsidiary Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
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(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Securities, or the property or creditors of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or any Subsidiary Guarantee or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or any Subsidiary
Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: Subject to Article Twelve and Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Company or to such other Person as a court of competent
jurisdiction shall direct.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of security or
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or offer by the Company to purchase the
Securities pursuant to the terms of this Indenture, on the Redemption Date or purchase date, as
applicable) and, if applicable, to convert such Security in accordance with its terms, and to
institute suit for the enforcement of any such right, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Subsidiary Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any
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other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series (including any Security which is required to have been purchased by the Company pursuant to
an offer to purchase by the Company made pursuant to the terms of this Indenture), or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series.
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.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or any Subsidiary Guarantor.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Company and the Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as expressly set forth in this
Indenture and as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term default means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the notations of Subsidiary
Guarantees, except the Trustees certificates of authentication, shall be taken as the statements
of the Company or the Subsidiary Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities or the
39
Subsidiary Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or any Subsidiary Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or any Subsidiary Guarantor,
as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company and each Subsidiary Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to Securities of more than
one series.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly
41
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Subsidiary Guarantors and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the Subsidiary Guarantors, the retiring Trustee and
each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or desirable to
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transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Subsidiary Guarantors shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. As soon as practicable, the
successor Trustee shall mail a notice of its succession to the Company and the Holders of the
Securities then Outstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.
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SECTION 613. Preferential Collection of Claims Against Company and Subsidiary Guarantors.
If and when the Trustee shall be or become a creditor of the Company, any Subsidiary Guarantor
or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company, such Subsidiary
Guarantor or any such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer, conversion
or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a Person organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such Person shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in
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Section 106 to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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[TRUSTEES NAME],
As Trustee
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By: |
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As Authenticating Agent |
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By: |
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Authorized Officer |
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series:
(1) not more than 10 days after each record date with respect to the payment of interest, if
any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such record date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company and Subsidiary Guarantors.
The Company and each of the Subsidiary Guarantors shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or permit any other Person to consolidate with or
merge into the Company or, directly or indirectly, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its assets, unless:
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(1) in a transaction in which the Company does not survive or in which the Company transfers,
conveys, sells, leases or otherwise disposes of all or substantially all of its assets, the
successor entity (for purposes of this Article Eight, a Successor Company) shall be a
corporation, partnership, trust or other entity organized and validly existing under the laws of
the United States of America, any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving pro forma effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such transfer, conveyance, sale,
lease or other disposition, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be permitted by this
Indenture, the Company or the Successor Company, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby;
(4) any other conditions provided pursuant to Section 301 with respect to the Securities of a
series are satisfied; and
(5) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.
Except in a transaction resulting in the release of a Subsidiary Guarantor in accordance with
the terms of this Indenture, each Subsidiary Guarantor shall not, and the Company shall not permit
any Subsidiary Guarantor to, in a single or a series of related transactions, consolidate or merge
with or into any Person (other than the Company or another Subsidiary Guarantor) or permit any
Person (other than another Subsidiary Guarantor) to consolidate or merge with or into such
Subsidiary Guarantor or, directly or indirectly, transfer, convey, sell, lease or otherwise dispose
of all or substantially all of its assets unless, in each case:
(1) in a transaction in which such Subsidiary Guarantor does not survive or in which all or
substantially all of the assets of such Subsidiary Guarantor are transferred, conveyed, sold,
leased or otherwise disposed of, the successor entity (the Successor Subsidiary Guarantor) shall
be a corporation, partnership, trust or other entity organized and validly existing under the laws
of the United States of America, any State thereof or the District of Columbia, and shall
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expressly assume by an indenture supplemental hereto executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of all obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture and the performance of every
covenant of this Indenture on the part of such Subsidiary Guarantor to be performed or observed;
and
(2) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any transfer, conveyance, sale, lease or other disposition of all or substantially all of
the assets of the Company in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
(b) Upon any consolidation of a Subsidiary Guarantor with, or merger of such Subsidiary
Guarantor into, any other Person or any transfer, conveyance, sale, lease or other disposition of
all or substantially all of the assets of such Subsidiary Guarantor in accordance with Section 802,
the Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may exercise every
right and power of, such Subsidiary Guarantor under this Indenture with the same effect as if such
successor Person had been named as a Subsidiary Guarantor herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and its Subsidiary Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, the
Subsidiary Guarantors, when authorized by their respective Board Resolutions, and the Trustee, at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Subsidiary Guarantor
and the assumption by any such successor of the covenants of the Company or any Subsidiary
Guarantor herein and in the Securities or Subsidiary Guarantees, as the case may be; or
(2) to add to the covenants of the Company or the Subsidiary Guarantors for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for the
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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 or the Subsidiary Guarantors; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become effective only when there is
no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201
and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(10) to make any other provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (10) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect; or
(11) to add new Subsidiary Guarantors; or
(12) to make any change to the provisions of Article Twelve or Fourteen that limits or
terminates the benefits applicable to any holder of Senior Debt.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
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Holders delivered to the Company, the Subsidiary Guarantors and the Trustee, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by their respective
Board Resolutions and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of (a) any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or in the case of an offer to purchase Securities which has been made pursuant to a covenant
contained in this Indenture, on or after the applicable purchase date), or (b) any conversion right
with respect to any Security, or modify the provisions of this Indenture with respect to the
conversion or subordination of the Securities or the Subsidiary Guarantees, in a manner adverse to
the Holders, or release any Subsidiary Guarantee other than as provided in this Indenture; or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or Section 1009, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to the Trustee and concomitant changes in this
Section and Section 1009, or the deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(8); or
(4) following the making of an offer to purchase Securities from any Holder which has been
made pursuant to a covenant contained in this Indenture, modify the provisions of this Indenture
with respect to such offer to purchase in a manner adverse to such Holder.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
After a supplemental indenture under this Section 902 requiring the consent of the Holders of
any series of Debt Securities is approved, the Company shall mail to Holders of that series of Debt
Securities a notice briefly describing any amendment or supplement hereto effected by such
supplemental indenture. The failure to give such notice to any such Holders, or any defect
therein, shall not impair or affect the validity of any amendment or supplement hereto effected by
such supplemental indenture with respect to other Holders.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company, if applicable the notations of Subsidiary Guarantees may be endorsed thereon and such
new Securities may be authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture. Principal, premium, if
any, and interest shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 A.M., New York City time, on the due date money
deposited with it in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due, and such Paying Agent is not prohibited from
paying such money to the Holders entitled thereto on such date pursuant to the terms of Article
Twelve or Fourteen of this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment or, if
applicable, for conversion, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company or any Subsidiary
Guarantor in respect of the Securities of that series or any Subsidiary Guarantee and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and each of the Company and the Subsidiary Guarantors
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Subsidiary Guarantor shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to 11:00 A.M., New York City time, on each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company, the Subsidiary Guarantors, if applicable, or any other
obligor upon the Securities of that series in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Statement by Officers as to Default.
(a) The Company and the Subsidiary Guarantors will deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company ending after the date hereof, an Officers
Certificate, stating whether or not to the best knowledge of the signers thereof (i) the Company or
any Subsidiary Guarantor, as the case may be, is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company or any Subsidiary
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Guarantor shall be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge and (ii) any event has occurred and remains in existence
prohibiting any payments on any series of Securities then Outstanding and, if any such event
exists, a description of such event and what action the Company is taking or proposes to take with
respect thereto.
(b) The Company shall, so long as any series of Securities is Outstanding, deliver to the
Trustee, as soon as possible and in any event within five days after the Company becomes aware of
the occurrence of an Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers Certificate setting forth the details of such
Event of Default or default, and the action which the Company proposes to take with respect
thereto.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be required to preserve
any such right or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
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SECTION 1008. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all times all of their
properties which are of an insurable nature insured against loss or damage with insurers believed
by the Company to be responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in accordance with good
business practice.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company and the Subsidiary Guarantors may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set forth in any of
Sections 1005 through 1008 or in any covenant provided pursuant to Section 301(22), 901(2) or
901(7) for the benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least five Business
Days prior to giving notice of such redemption (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers Certificate evidencing compliance with such
restriction.
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, (i) in compliance
with the requirements of the principal national securities exchange on which such Securities are
listed, if such Securities are listed on any national securities exchange, and (ii) if such
Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously called for redemption
in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Upon any redemption of less than all the
Securities of a series, for purposes of selection for redemption the Company and the Trustee may
treat as Outstanding Securities surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as Outstanding any Security
authenticated and delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register; provided, however, notice of redemption may be
given more than 60 days prior to the Redemption Date if the notice is issued
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in connection with a satisfaction and discharge pursuant to Article Four. All notices of
redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, if then determinable and otherwise the method of its determination,
(3) if less than all the Outstanding Securities of any series consisting of more than a single
Security are to be redeemed, the identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be redeemed and, if less than
all the Outstanding Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption
Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) if applicable, the conversion price then in effect and the date on which the right to convert
such Securities will expire.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable. If any Security called for redemption is converted pursuant
hereto, any money deposited with the Trustee or any Paying Agent or so segregated and held in trust
for the redemption of such Security shall be paid to the Company upon delivery of a Company Request
to the Trustee or such Paying Agent, or, if then held by the Company, shall be discharged from such
trust.
SECTION 1105. Deposit of Redemption Price.
Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall
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be paid by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section
301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, if
applicable, the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon, 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 like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Applicability of Article.
Unless otherwise provided with respect to the Securities of any series in or pursuant to the
Board Resolution or supplemental indenture establishing such series of Securities pursuant to
Section 301, the provisions of this Article shall be applicable to each series of Securities.
SECTION 1202. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article Four and Article Fifteen), the payment of the
principal of (and premium, if any) and interest on each and all of the Securities of such series is
hereby expressly made subordinate and subject in right of payment to the prior payment in full of
all Senior Debt of the Company.
No provisions of this Article Twelve shall prevent the occurrence of any Event of Default.
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SECTION 1203. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a Proceeding) the
holders of Senior Debt of the Company shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Debt of the Company, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt of the Company, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company subordinated to the payment of the Securities, such
payment or distribution being hereinafter referred to as a Junior Subordinated Payment), on
account of principal of (or premium, if any) or interest on the Securities or on account of any
purchase or other acquisition of Securities by the Company or any Subsidiary of the Company (all
such payments, distributions, purchases and acquisitions, other than the payment or distribution of
stock or securities of the Company referred to in the second succeeding paragraph, herein referred
to, individually and collectively, as a Securities Payment), and to that end the holders of
Senior Debt of the Company shall be entitled to receive, for application to the payment thereof,
any Securities Payment which may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any Securities Payment before all Senior Debt of the
Company is paid in full or payment thereof provided for in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt of the Company, and if such fact shall, at or
prior to the time of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all Senior Debt of the Company remaining unpaid, to the extent necessary to pay all
Senior Debt of the Company in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt of the Company.
For purposes of this Article only, the words any payment or distribution of any kind or
character, whether in cash, property or securities shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other corporation provided
for by such plan of reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt of the Company to substantially the same
extent as the Securities are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or
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the liquidation or dissolution of the Company following the conveyance or other disposition of
all or substantially all of its assets to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance or other disposition such assets, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article
Eight.
SECTION 1204. No Payment When Senior Debt of the Company in Default.
In the event that any Senior Payment Default (as defined below) shall have occurred and be
continuing, then no Securities Payment shall be made unless and until such Senior Payment Default
shall have been cured or waived or shall have ceased to exist or all amounts then due and payable
in respect of Senior Debt of the Company shall have been paid in full, or provision shall have been
made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 1602 Securities which have been acquired (upon
redemption or otherwise) prior to such Senior Payment Default.
Senior Payment Default means any default in the payment of principal of (or premium, if any)
or interest on any Senior Debt of the Company when due, whether at the Stated Maturity of any such
payment or by declaration of acceleration, call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below) shall have occurred and be
continuing, then, upon the receipt by the Company, the Subsidiary Guarantors and the Trustee of
written notice of such Senior Nonmonetary Default from the agent for the Designated Senior Debt
which is the subject of such Senior Nonmonetary Default, no Securities Payment shall be made during
the period (the Payment Blockage Period) commencing on the date of such receipt of such written
notice and ending on the earlier of (i) the date on which such Senior Nonmonetary Default shall
have been cured or waived or shall have ceased to exist or all Designated Senior Debt the subject
of such Senior Nonmonetary Default shall have been discharged; (ii) the 179th day after the date of
such receipt of such written notice; or (iii) the date on which the Payment Blockage Period shall
have been terminated by written notice to the Company, any Subsidiary Guarantor or the Trustee from
the agent for the Designated Senior Debt initiating the Payment Blockage Period; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Sixteen by delivering and crediting pursuant to Section 1602 Securities
which have been acquired (upon redemption or otherwise) prior to the date of such receipt of such
written notice. No more than one Payment Blockage Period may be commenced with respect to the
Securities of a particular series during any 360-day period and there shall be a period of at least
181 consecutive days in each 360-day period when no Payment Blockage Period is in effect. For all
purposes of this paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period, whether or not within a period of 360
consecutive days, unless such Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days.
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Senior Nonmonetary Default means the occurrence or existence and continuance of any event of
default with respect to any Designated Senior Debt, other than a Senior Payment Default, permitting
the holders of such Designated Senior Debt (or a trustee or agent on behalf of the holders thereof)
to declare such Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.
In the event that, notwithstanding the foregoing, the Company shall make any Securities
Payment to the Trustee or any Holder prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such Securities Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such Securities Payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities Payment with respect to which
Section 1203 would be applicable.
SECTION 1205. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any Proceeding referred to
in Section 1203 or under the conditions described in Section 1204, from making Securities Payments,
or (b) the application by the Trustee of any money deposited with it hereunder to Securities
Payments or the retention of such Securities Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such Securities Payment would have been
prohibited by the provisions of this Article.
SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company.
Subject to the payment in full of all amounts due or to become due on or in respect of Senior
Debt of the Company, or the provision for such payment in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt of the Company, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior Debt of the Company to receive
payments and distributions of cash, property and securities applicable to the Senior Debt of the
Company until the principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of the Company of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of Senior Debt of the
Company by Holders of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt of the Company and the Holders of the Securities, be deemed to be
a payment or distribution by the Company to or on account of the Senior Debt of the Company.
SECTION 1207. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Debt of the Company on the
other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other than
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holders of Senior Debt of the Company and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt of the Company, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the principal of (and premium,
if any) and interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the Company other than the holders of Senior Debt of the
Company; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt of the Company to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1208. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1209. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Debt of the Company may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior Debt of the
Company, do any one or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt of the Company, or otherwise amend or
supplement in any manner Senior Debt of the Company or any instrument evidencing the same or any
agreement under which Senior Debt of the Company is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt of the
Company; (iii) release any Person liable in any manner for the collection of Senior Debt of the
Company; and (iv) exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 1210. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
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Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the Company or a holder of
Senior Debt of the Company or from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be received by it within
three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt
of the Company (or a trustee therefor) to establish that such notice has been given by a holder of
Senior Debt of the Company (or a trustee therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any Person as a holder of
Senior Debt of the Company to participate in any payment or distribution pursuant to this Article,
the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt of the Company held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt of the Company and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of the
Company and shall not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company, a Subsidiary Guarantor or to any other
Person cash, property or securities to which any holders of Senior Debt of the Company shall be
entitled by virtue of this Article or otherwise.
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SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company; Preservation of
Trustees Rights.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt of the Company which may at any time be held by it, to the
same extent as any other holder of Senior Debt of the Company, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.
SECTION 1214. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term Trustee as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 1213
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of the Company if it or
such Subsidiary Guarantor or Affiliate acts as Paying Agent.
SECTION 1215. Defeasance of this Article Twelve.
The subordination of the Securities of a series provided by this Article Twelve is expressly
made subject to the provisions for Defeasance or Covenant Defeasance in Article Fifteen hereof and,
anything herein to the contrary notwithstanding, upon the effectiveness of any such Defeasance or
Covenant Defeasance, the Securities of such series then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEES
SECTION 1301. Applicability of Article.
Unless the Company elects to issue any series of Securities without the benefit of the
Subsidiary Guarantees, which election shall be evidenced in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities pursuant to Section 301, the
provisions of this Article shall be applicable to each series of Securities except as otherwise
specified in or pursuant to the Board Resolution or supplemental indenture establishing such series
pursuant to Section 301.
SECTION 1302. Subsidiary Guarantees.
Subject to Section 1301, each Subsidiary Guarantor hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on such
Security when and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance with
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the terms of such Security and of this Indenture, and each Subsidiary Guarantor similarly
guarantees to the Trustee the payment of all amounts owing to the Trustee in accordance with the
terms of this Indenture. In case of the failure of the Company punctually to make any such
payment, each Subsidiary Guarantor hereby, jointly and severally, agrees to cause such payment to
be made punctually when and as the same shall become due and payable, whether at the Stated
Maturity or by acceleration, call for redemption, offer to purchase or otherwise, and as if such
payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be absolute, unconditional, irrespective of, and shall be unaffected by, the
validity, regularity or enforceability of such Security or this Indenture, the absence of any
action to enforce the same or any release, amendment, waiver or indulgence granted to the Company
or any other guarantor or any consent to departure from any requirement of any other guarantee of
all or any of the Securities of such series or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however,
that, notwithstanding the foregoing, no such release, amendment, waiver or indulgence shall,
without the consent of such Subsidiary Guarantor, increase the principal amount of such Security,
or increase the interest rate thereon, or alter the Stated Maturity thereof. Each of the
Subsidiary Guarantors hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged in
respect of such Security except by complete performance of the obligations contained in such
Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to accelerate the maturity of
the Securities of a series, to collect interest on the Securities of a series, or to enforce or
exercise any other right or remedy with respect to the Securities of a series, such Subsidiary
Guarantor agrees to pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by the Subsidiary Guarantees is, to
the extent provided in this Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of each Subsidiary Guarantor, and the Subsidiary Guarantees are
issued subject to the provisions of this Indenture with respect thereto. Each Holder of such
Security, by accepting the same, will be deemed to have (a) agreed to and be bound by such
provisions, (b) authorized and directed the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c) appointed the Trustee
his attorney-in-fact for any and all such purposes.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Securities
upon which its Subsidiary Guarantee is endorsed against the Company in respect of
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any amounts paid by such Subsidiary Guarantor on account of such Security pursuant to the
provisions of its Subsidiary Guarantee or this Indenture; provided, however, that no Subsidiary
Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any) and interest on all
Securities of the relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantor that makes or is required to make any payment in respect of its
Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to
the extent permitted by applicable law; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
contribution until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Companys assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Securities of a series, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the
Securities, whether as a voidable preference, fraudulent transfer, or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
SECTION 1303. Execution and Delivery of Notations of Subsidiary Guarantees.
To further evidence the Subsidiary Guarantee set forth in Section 1302, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Subsidiary Guarantee, substantially in
the form set forth in Section 204, shall be endorsed on each Security entitled to the benefits of
the Subsidiary Guarantee authenticated and delivered by the Trustee and executed by either manual
or facsimile signature of an officer of such Subsidiary Guarantor, or in the case of a Subsidiary
Guarantor that is a limited partnership, an officer of the general partner of each Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that the Subsidiary Guarantee set forth
in Section 1302 shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation relating to the Subsidiary Guarantee. If any officer of the Subsidiary
Guarantor, or in the case of a Subsidiary Guarantor that is a limited partnership, any officer of
the general partner of the Subsidiary Guarantor, whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such Security or at any time
thereafter, the Subsidiary Guarantee of such Security shall be valid nevertheless. The delivery of
any Security by the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
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SECTION 1304. Release of Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a series of Securities,
each Subsidiary Guarantee will remain in effect with respect to the respective Subsidiary Guarantor
until the entire principal of, premium, if any, and interest on the Securities to which such
Subsidiary Guarantee relates shall have been paid in full or otherwise satisfied and discharged in
accordance with the provisions of such Securities and this Indenture and all amounts owing to the
Trustee hereunder have been paid; provided, however, that if (i) such Subsidiary Guarantor ceases
to be a Subsidiary in compliance with the applicable provisions of this Indenture, (ii) either
Defeasance or Covenant Defeasance occurs with respect to such Securities pursuant to Article
Fifteen or (iii) all or substantially all of the assets of such Subsidiary Guarantor or all of the
Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the requirements of
this Indenture, then, in each case of (i), (ii) or (iii), upon delivery by the Company of an
Officers Certificate and an Opinion of Counsel stating that all conditions precedent herein
provided for relating to the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee and this Article Thirteen have been complied with, such Subsidiary Guarantor
shall be released and discharged of its obligations under its Subsidiary Guarantee and under this
Article Thirteen without any action on the part of the Trustee or any Holder, and the Trustee shall
execute any documents reasonably required in order to acknowledge the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the Securities of such
series and under this Article Thirteen.
SECTION 1305. Additional Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a series of Securities, the
Company will cause any domestic Wholly Owned Subsidiary of the Company that becomes a Subsidiary
after the date the Securities of a series are first issued hereunder to become a Subsidiary
Guarantor as soon as practicable after such Subsidiary becomes a Subsidiary. The Company shall
cause any such Wholly Owned Subsidiary to become a Subsidiary Guarantor with respect to the
Securities by executing and delivering to the Trustee (a) a supplemental indenture, in form and
substance satisfactory to the Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized and executed by
such Person and such supplemental indenture and such Persons obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and enforceable obligations of
such Person (subject to such customary exceptions concerning creditors rights and equitable
principles as may be acceptable to the Trustee in its discretion).
SECTION 1306. Limitation on Liability.
Any term or provision of this Indenture to the contrary notwithstanding, the maximum amount of
the Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed the maximum amount that can
be hereby guaranteed by such Subsidiary Guarantor without rendering such Subsidiary Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.
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ARTICLE FOURTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1401. Applicability of Article.
Unless otherwise provided with respect to the Securities of any series in or pursuant to the
Board Resolution or supplemental indenture establishing such series of Securities pursuant to
Section 301, the provisions of this Article shall be applicable to each series of Securities.
SECTION 1402. Subsidiary Guarantees Subordinate to Senior Debt of Subsidiary Guarantors.
Each Subsidiary Guarantor covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article Four and Article
Fifteen), the Subsidiary Guarantee of such Subsidiary Guarantor is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior Debt of such
Subsidiary Guarantor.
No provisions of this Article Fourteen shall prevent the occurrence of any Event of Default.
SECTION 1403. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to any Subsidiary Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of any Subsidiary Guarantor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Subsidiary Guarantor, then and
in any such event specified in (a), (b) or (c) above (each such event, if any, herein sometimes
referred to as a Guarantor Proceeding) the holders of Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full of all amounts due or to become due on or in respect
of all Senior Debt of such Subsidiary Guarantor, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt of
such Subsidiary Guarantor, before the Holders of the Securities are entitled to receive any payment
or distribution of any kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the payment of any other
indebtedness of such Subsidiary Guarantor subordinated to the payment of the Securities, such
payment or distribution being hereinafter referred to as a Guarantor Junior Subordinated
Payment), on account of the Subsidiary Guarantee of such Subsidiary Guarantor (all such payments,
other than the payment or distribution of stock or securities of a Subsidiary Guarantor referred to
in the second succeeding paragraph, herein referred to, individually and collectively, as a
Guarantee Payment), and to that end the holders of Senior Debt of such Subsidiary Guarantor shall
be entitled to receive, for application to the payment thereof, any Guarantee Payment which may be
payable or deliverable in respect of such Subsidiary Guarantors Subsidiary Guarantee in any such
Guarantor Proceeding.
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In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any Guarantee Payment before all Senior Debt of such
Subsidiary Guarantor is paid in full or payment thereof provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt of such Subsidiary Guarantor, and
if such fact shall, at or prior to the time of such Guarantee Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such Guarantee Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of assets of such
Subsidiary Guarantor for application to the payment of all Senior Debt of such Subsidiary Guarantor
remaining unpaid, to the extent necessary to pay all Senior Debt of such Subsidiary Guarantor in
full, after giving effect to any concurrent payment or distribution to or for the holders of Senior
Debt of such Subsidiary Guarantor.
For purposes of this Article only, the words any payment or distribution of any kind or
character, whether in cash, property or securities shall not be deemed to include a payment or
distribution of stock or securities of a Subsidiary Guarantor provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which stock or securities
are subordinated in right of payment to all then outstanding Senior Debt of such Subsidiary
Guarantor to substantially the same extent as the Subsidiary Guarantees are so subordinated as
provided in this Article. The consolidation of a Subsidiary Guarantor with, or the merger of a
Subsidiary Guarantor into, another Person or the liquidation or dissolution of such Subsidiary
Guarantor following the conveyance or other disposition of all or substantially all of its assets
to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a
Guarantor Proceeding for the purposes of this Section if the Person formed by such consolidation or
into which such Subsidiary Guarantor is merged or the Person which acquires by conveyance or
transfer such assets, as the case may be, shall, as a part of such consolidation, merger,
conveyance or other disposition, comply with the conditions set forth in Article Eight.
SECTION 1404. No Payment When Senior Debt of such Subsidiary Guarantor in Default.
In the event that any Senior Payment Default shall have occurred and be continuing, then no
Guarantee Payment shall be made unless and until such Senior Payment Default shall have been cured
or waived or shall have ceased to exist or all amounts then due and payable in respect of the
relevant Senior Debt of the Company shall have been paid in full, or provision shall have been made
for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of such Senior Debt; provided, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by delivering and crediting pursuant to
Section 1602 Securities which have been acquired (upon redemption or otherwise) prior to such
Senior Payment Default.
In the event that any Senior Nonmonetary Default shall have occurred and be continuing, then,
upon the receipt by the Company, the Subsidiary Guarantors and the Trustee of written notice of
such Senior Nonmonetary Default from any holder, or agent for the holders, of any Designated Senior
Debt of the Company, no Guarantee Payment shall be made during the applicable Payment Blockage
Period; provided, however, that nothing in this Section shall
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prevent the satisfaction of any sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 1602 Securities which have been acquired (upon
redemption or otherwise) prior to the date of such receipt of such written notice. No more than
one Payment Blockage Period may be commenced with respect to the Subsidiary Guarantees during any
360-day period and there shall be a period of at least 181 consecutive days in each 360-day period
when no Payment Blockage Period is in effect. For all purposes of this paragraph, no Senior
Nonmonetary Default that existed or was continuing on the date of commencement of any Payment
Blockage Period shall be, or be made, the basis for the commencement of a subsequent Payment
Blockage Period, whether or not within a period of 360 consecutive days, unless such Senior
Nonmonetary Default shall have been cured for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, a Subsidiary Guarantor shall make any
Guarantee Payment to the Trustee or any Holder prohibited by the foregoing provisions of this
Section, and if such fact shall, at or prior to the time of such Guarantee Payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event such Guarantee
Payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Guarantee Payment with respect to which
Section 1403 would be applicable.
SECTION 1405. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Subsidiary
Guarantees shall prevent (a) a Subsidiary Guarantor, at any time except during the pendency of any
Guarantor Proceeding referred to in Section 1403 or under the conditions described in Section 1404,
from making Guarantee Payments, or (b) the application by the Trustee of any money deposited with
it hereunder to Guarantee Payments or the retention of such Guarantee Payment by the Holders, if,
at the time of such application by the Trustee, it did not have knowledge that such Guarantee
Payment would have been prohibited by the provisions of this Article.
SECTION 1406. Subrogation to Rights of Holders of Senior Debt of such Subsidiary Guarantor.
Subject to the payment in full of all amounts due or to become due on or in respect of Senior
Debt of a Subsidiary Guarantor, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt of such Subsidiary Guarantor, the
Holders of the Securities shall be subrogated to the rights of the holders of such Senior Debt of
such Subsidiary Guarantor to receive payments and distributions of cash, property and securities
applicable to the Senior Debt of such Subsidiary Guarantor until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of a Subsidiary Guarantor of any cash,
property or securities to which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the provisions of this
Article to the holders of Senior Debt of a Subsidiary Guarantor by Holders of the Securities or the
Trustee, shall, as among a Subsidiary Guarantor, its creditors
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other than holders of Senior Debt of such Subsidiary Guarantor and the Holders of the
Securities, be deemed to be a payment or distribution by such Subsidiary Guarantor to or on account
of the Senior Debt of such Subsidiary Guarantor.
SECTION 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Debt of a Subsidiary
Guarantor on the other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Subsidiary Guarantees is intended to or shall (a) impair, as among a Subsidiary Guarantor,
its creditors other than holders of Senior Debt of such Subsidiary Guarantor and the Holders of the
Securities, the obligation of such Subsidiary Guarantor, which is absolute and unconditional (and
which, subject to the rights under this Article of the holders of Senior Debt of such Subsidiary
Guarantor, is intended to rank equally with all other general obligations of such Subsidiary
Guarantor), to guarantee payment to the Holders of the Securities of the principal of (and premium,
if any) and interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against a Subsidiary Guarantor of
the Holders of the Securities and creditors of such Subsidiary Guarantor other than the holders of
Senior Debt of such Subsidiary Guarantor; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt of a
Subsidiary Guarantor to receive cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder.
SECTION 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of a Subsidiary Guarantor to
enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of such Subsidiary Guarantor or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by such Subsidiary Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Debt of a Subsidiary Guarantor may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Debt
of such Subsidiary Guarantor, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of,
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or renew or alter, Senior Debt of such Subsidiary Guarantor, or otherwise amend or supplement
in any manner Senior Debt of such Subsidiary Guarantor or any instrument evidencing the same or any
agreement under which Senior Debt of such Subsidiary Guarantor is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt of
such Subsidiary Guarantor; (iii) release any Person liable in any manner for the collection of
Senior Debt of such Subsidiary Guarantor; and (iv) exercise or refrain from exercising any rights
against such Subsidiary Guarantor and any other Person.
SECTION 1410. Notice to Trustee.
Each Subsidiary Guarantor shall give prompt written notice to the Trustee of any fact known to
such Subsidiary Guarantor which would prohibit the making of any payment to or by the Trustee in
respect of its Subsidiary Guarantee. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in respect of the
Subsidiary Guarantees, unless and until the Trustee shall have received written notice thereof from
a Subsidiary Guarantor or a holder of Senior Debt of such Subsidiary Guarantor or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be affected by any notice
to the contrary which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt
of a Subsidiary Guarantor (or a trustee therefor) to establish that such notice has been given by a
holder of Senior Debt of such Subsidiary Guarantor (or a trustee therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt of such Subsidiary
Guarantor held by such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of a Subsidiary Guarantor referred to in this
Article, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction
in which such Guarantor Proceeding is pending, or a certificate of the trustee in bankruptcy,
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receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt of such Subsidiary Guarantor and other indebtedness of
such Subsidiary Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1412. Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary
Guarantor.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of a
Subsidiary Guarantor and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company, a Subsidiary
Guarantor, or to any other Person cash, property or securities to which any holders of Senior Debt
of such Subsidiary Guarantor shall be entitled by virtue of this Article or otherwise.
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SECTION 1413. |
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Rights of Trustee as Holder of Senior Debt of such Subsidiary Guarantor; Preservation of Trustees Rights. |
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt of a Subsidiary Guarantor which may at any time be held by
it, to the same extent as any other holder of Senior Debt of such Subsidiary Guarantor, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.
SECTION 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term Trustee as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 1413
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of the Company if it or
such Subsidiary Guarantor or Affiliate acts as Paying Agent.
SECTION 1415. Defeasance of this Article Fourteen.
The subordination of the Subsidiary Guarantees provided by this Article Fourteen is expressly
made subject to the provisions for Defeasance or Covenant Defeasance of a series of Securities in
Article Fifteen hereof and, anything herein to the contrary notwithstanding, upon the effectiveness
of any such Defeasance or Covenant Defeasance with respect to a series of Securities, the
Subsidiary Guarantees of the Securities of such series shall thereupon cease to be subordinated
pursuant to this Article Fourteen.
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ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1502 or 1503, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced in or pursuant to a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1502. Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and each Subsidiary Guarantor shall be deemed to have been
discharged from its obligations with respect to its Subsidiary Guarantee of such Securities, and
the provisions of Articles Twelve and Fourteen shall cease to be effective, with respect to such
Securities and Subsidiary Guarantees as provided in this Section on and after the date the
conditions set forth in Section 1504 are satisfied (herein called Defeasance). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund described in Section
1504 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, or, if applicable, to convert such
Securities in accordance with their terms, (2) the Companys and each Subsidiary Guarantors
obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, and, if
applicable, their obligations with respect to the conversion of such Securities, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section
1503 applied to such Securities.
SECTION 1503. Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Section 801(3), Sections 1006 through 1008, inclusive, and any covenants
provided pursuant to Section 301(22), 901(2) or 901(7) for the benefit of the Holders of such
Securities, and (2) the occurrence of any event specified in Sections 501(5) (with respect to any
of Section 801(3), Sections 1006 through 1008, inclusive, and any such covenants provided pursuant
to Section 301(22), 901(2) or 901(7)), 501(6), 501(7)), 501(10) and 501(11) shall be
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deemed not to be or result in an Event of Default and (3) the provisions of Articles Twelve,
Thirteen and Fourteen shall cease to be effective, in each case with respect to such Securities and
Subsidiary Guarantees as provided in this Section on and after the date the conditions set forth in
Section 1504 are satisfied (herein called Covenant Defeasance). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company and the Subsidiary Guarantors,
as applicable, may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent so specified in the
case of Section 501(5)) or Articles Twelve, Thirteen or Fourteen, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1502 or Section 1503 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, U.S. Government Obligation means
(x) any security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
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(2) In the event of an election to have Section 1502 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit and
Defeasance were not to occur.
(3) In the event of an election to have Section 1503 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(7) and (8), at any time on or
prior to the 121st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 121st day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company or any
Subsidiary is a party or by which it is bound.
(8) At the time of such deposit, (A) no default in the payment of any principal of or premium
or interest on any Senior Debt of the Company or any Subsidiary Guarantor shall have occurred and
be continuing, (B) no event of default with respect to any Senior Debt of the Company or any
Subsidiary Guarantor shall have resulted in such Senior Debt becoming, and continuing to be, due
and payable prior to the date on which it would otherwise have become due and payable (unless
payment of such Senior Debt has been made or duly provided for), and (C) no other event of default
with respect to any Senior Debt of the Company or any Subsidiary Guarantor shall have occurred and
be continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt
(or a trustee on behalf of such holders) to declare such Senior
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Debt due and payable prior to the date on which it would otherwise have become due and
payable.
(9) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
such deposit shall not cause either the Trustee or the trust so created to be subject to the
Investment Company Act of 1940.
(10) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1505. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1506, the Trustee and any such other trustee are
referred to collectively as the Trustee) pursuant to Section 1504 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law. Money and U.S. Government Obligations so held in trust shall not be
subject to the provisions of Article Twelve or Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1504 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 1504 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
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Section 1505 with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company shall be subrogated to
the rights (if any) of the Holders of such Securities to receive such payment from the money so
held in trust.
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a mandatory sinking fund payment, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an optional sinking
fund payment. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1602. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been (x)
converted or (y) redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided,
however, that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1603. Redemption of Securities for Sinking Fund.
Not less than 35 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1602 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 32 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the
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redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
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ISSUER:
MITCHAM INDUSTRIES, INC.
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By: |
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Name: |
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Title: |
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SUBSIDIARY GUARANTORS:
[SUBSIDIARY GUARANTORS]
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By: |
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Name: |
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Title: |
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TRUSTEE:
[TRUSTEES NAME], as Trustee
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[Signature Page to Subordinated Indenture]
SCHEDULE I
SUBSIDIARY GUARANTORS
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STATE OF |
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SUBSIDIARY |
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ORGANIZATION |
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[Insert Subsidiary Guarantors] |
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Schedule I
exv5w1
Exhibit 5.1
March 18, 2011
Mitcham Industries, Inc.
8141 SH 75 South, P.O. Box 1175
Huntsville, Texas 77342
Re: Registration Statement on Form S-3 (the Registration Statement)
Ladies and Gentlemen:
We have acted as counsel for Mitcham Industries, Inc., a Texas corporation (the Company),
with respect to certain legal matters in connection with the preparation of a registration
statement on Form S-3 filed on the date hereof and to which this opinion is an exhibit (the
Registration Statement) with the Securities and Exchange Commission (the Commission) relating
to the offer and sale of:
(1) debt securities, in one or more series, consisting of notes, debentures or other evidences
of indebtedness (the Debt Securities);
(2) guarantees (the Guarantees) of the Debt Securities by Seamap Inc., a Texas corporation,
and Drilling Services, Inc. , a Delaware corporation (collectively referred to herein as the
Subsidiary Guarantors);
(3) shares of the Companys common stock, par value $0.01 per share (the Common Stock);
(4) shares of the Companys preferred stock, in one or more series, with such terms and rights
as determined by the Companys board of directors from time to time (the Preferred Stock); and
(5) warrants
to for the purchase of Common Stock (the Warrants);
all of which may be issued and sold from time to time pursuant to Rule 415 under the
Securities Act of 1933, as amended (the Securities Act) at an aggregate initial offering price
not to exceed $60,000,000.
The Debt Securities, Common Stock, Preferred Stock and Warrants are collectively referred to
herein as the Securities. We have also participated in the preparation of the
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March 18, 2011 Page 2 |
Prospectus (the Prospectus) contained in the Registration Statement. The Securities will be
offered in amounts, at prices and on terms to be determined in light of market conditions at the
time of sale and to be set forth in supplements (each a Prospectus Supplement) to the prospectus
contained in the Registration Statement.
We have examined originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Amended and Restated Certificate of Incorporation and the Third Amended and Restated
Bylaws of the Company, (ii) the Registration Statement, (iii) the form of Senior Indenture filed as
an exhibit to the Registration Statement (the Senior Indenture), (iv) the form of Subordinated
Indenture filed as an exhibit to the Registration Statement (the Subordinated Indenture and,
together with the Senior Indenture, the Indentures), (iv) other formation documents and
agreements, as applicable, of the Subsidiary Guarantors, (v) resolutions of the board of directors
of the Company and (vi) such other certificates, statutes and other instruments and documents as we
considered appropriate for purposes of the opinions hereafter expressed. In addition, we have
reviewed certain certificates of officers of the Company and of public officials, we have relied on
such certificates with respect to certain factual matters that we have not independently
established and we reviewed such questions of law as we considered appropriate.
In connection with rendering the opinions set forth below, we have assumed that:
(i) all information contained in all documents reviewed by us is true and correct;
(ii) all signatures on all documents examined by us are genuine;
(iii) all documents submitted to us as originals are authentic and all documents submitted to
us as copies conform to the originals of those documents;
(iv) the Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective;
(v) a Prospectus Supplement will have been prepared and filed with the Commission describing
the Securities offered thereby;
(vi) all Securities will be issued and sold in compliance with applicable federal and state
securities laws and in the manner specified in the Registration Statement and the applicable
Prospectus Supplement;
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March 18, 2011 Page 3 |
(vii) the Indentures relating to the Debt Securities and the Warrant Agreement will be duly
authorized, executed and delivered by the parties thereto;
(viii) each person signing the documents we examined has the legal capacity and authority to
do so;
(ix) at the time of any offering or sale of any shares of Common Stock and/or Preferred Stock,
that the Company shall have such number of shares of Common Stock and/or Preferred Stock, as set
forth in such offering or sale, authorized or created and available for issuance;
(x) a definitive purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the Company and the
other parties thereto; and
(xi) any Securities issuable upon conversion, exchange or exercise of any Debt Securities or
Preferred Stock being offered will have been duly authorized, created and, if appropriate, reserved
for issuance upon such conversion, exchange or exercise.
Based on the foregoing, and subject to the assumptions, qualifications, limitations, and
exceptions set forth herein, we are of the opinion that:
1. When (a) the applicable Indenture relating either to senior Debt Securities or subordinated
Debt Securities and, if applicable, the related Guarantees have been duly qualified under the Trust
Indenture Act of 1939, as amended, (b) the boards of directors of the Company (or a committee
thereof) and the Subsidiary Guarantors, as applicable, have taken all necessary corporate action to
approve the issuance and terms of any such Debt Securities and, if applicable, Guarantees, (c) the
terms of such Debt Securities and, if applicable, Guarantees and of their issuance and sale have
been duly established in conformity with the applicable Indenture so as not to violate any
applicable law or result in a default under or breach of any agreement or instrument binding upon
the Company or the Subsidiary Guarantors, as applicable, and so as to comply with any requirements
or restrictions imposed by any court or governmental body having jurisdiction over the Company or
the Subsidiary Guarantors, as applicable, (d) any shares of Common Stock issuable upon the
conversion of such Debt Securities, if applicable, have been duly and validly authorized for
issuance and (e) such Debt Securities (which may include the related Guarantees) have been duly
executed and authenticated in accordance with the applicable Indenture and issued and sold as
contemplated in the Registration Statement and upon payment of the consideration for such Debt
Securities as provided for in the applicable
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March 18, 2011 Page 4 |
definitive purchase, underwriting or similar agreement, such Debt Securities and, if
applicable, Guarantees will be legally issued and such Debt Securities and, if applicable,
Guarantees will constitute valid and legally binding obligations of the Company and the Subsidiary
Guarantors, respectively, enforceable against the Company and the Subsidiary Guarantors in
accordance with their terms, except as such enforcement is subject to any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or affecting creditors rights generally
and to general equitable principles (regardless of whether enforcement is sought in a proceeding in
equity or at law);
2. With respect to shares of the Common Stock offered by the Company, when (i) the board of
directors of the Company has taken all necessary corporate action to approve the issuance and terms
of the offering thereof and related matters; and (ii) certificates representing the shares of
Common Stock have been duly executed, countersigned, registered and delivered in accordance with
the applicable definitive purchase, underwriting or similar agreement approved by the board of
directors of the Company, then upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein, such Common Stock will be validly issued, fully
paid and non-assessable;
3. With respect to shares of any series of Preferred Stock, when (i) the Board has taken all
necessary corporate action to approve the issuance and terms of the shares of the series, the terms
of the offering thereof and related matters, including the adoption of a resolution establishing
and designating the series and fixing and determining the preferences, limitations and relative
rights thereof and the filing of a statement with respect to the series with the Secretary of State
of the State of Texas; and (ii)
certificates representing the shares of the series of Preferred Stock have been duly executed,
countersigned, registered and delivered in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board, then upon payment of the consideration
therefor (not less than the par value of the Preferred Stock) provided for therein the shares of
the series of Preferred Stock will be validly issued, fully paid and non-assessable; and
4. When the terms of any Warrants and of their issuance and sale have been duly established in
conformity with the applicable Warrant Agreement so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon the Company and so as to
comply with any requirements or restrictions imposed by any court or governmental body having
jurisdiction over the Company, and the Warrants have been duly executed and authenticated in
accordance with the applicable Warrant Agreement and issued and sold as contemplated in the
Registration Statement, the Warrants will
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March 18, 2011 Page 5 |
constitute valid and legally binding obligations of the Company, subject to bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or affecting creditors rights generally
and to general equitable principles (regardless of whether enforcement is sought in a proceeding in
equity or at law).
We express no opinions concerning (a) the validity or enforceability of any provisions
contained in the Indentures that purport to waive or not give effect to rights to notices,
defenses, subrogation or other rights or benefits that cannot be effectively waived under
applicable law; or (b) the enforceability of indemnification provisions to the extent they purport
to relate to liabilities resulting from or based upon negligence or any violation of federal or
state securities or blue sky laws.
The foregoing opinions are limited to the
Delaware General Corporation Law (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws), the federal laws of
the United States, the laws of State of Texas and the laws of the State of New York. For purposes of this
opinion, we assume that the Securities will be issued in compliance with all applicable state
securities or blue sky laws.
We express no opinion as to the effect of the laws of any other jurisdiction, domestic or
foreign, or to any matter other than as expressly set forth above, and no opinion on any other
matter may be inferred or implied herefrom. The opinions expressed herein are given as of the date
hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any
matter set forth herein.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement
and to the use of our name in the Prospectus forming a part of the Registration Statement under the
caption Legal Matters. In giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
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/s/ Vinson & Elkins L.L.P.
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Vinson & Elkins L.L.P. |
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exv23w1
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-3 of Mitcham
Industries, Inc. of our report dated April 9, 2010, relating to our audit of the consolidated
financial statements for the year ended January 31, 2010, which appear in the Annual Report on Form
10-K of Mitcham Industries, Inc. for the year ended January 31, 2010.
We also consent to the reference to our firm under the caption Experts in the Prospectus, which
is part of this Registration Statement.
/s/ Hein & Associates LLP
Hein & Associates LLP
Houston, Texas
March 18, 2011