As filed with the Securities and Exchange Commission on October 10, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
W&T Offshore, 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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72-1121985
(I.R.S. Employer
Identification Number)
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5718 Westheimer Road, Suite 700
Houston, Texas 77057
(713) 626-8525
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
George Hittner
Executive Vice President, General Counsel and Corporate Secretary
5718 Westheimer Road, Suite 700
Houston, Texas 77057
(713) 626-8525
(Address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Michael W. Rigdon, P.C.
Billy Vranish
Kirkland & Ellis LLP
609 Main Street
Houston, Texas 77002
(713) 836-3600
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act ☐
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 that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
*TABLE OF ADDITIONAL SUBSIDIARY GUARANTOR REGISTRANTS
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Exact Name of Additional Registrants(1)
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State or Other
Jurisdiction of
Incorporation
or Formation
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IRS
Employer
Identification
Number
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W & T Energy VI, LLC
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Delaware
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20-4416495 |
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W & T Energy VII, LLC
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Delaware
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20-4416601 |
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Aquasition III LLC
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Delaware
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86-2800405 |
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Aquasition IV LLC
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Delaware
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86-2820500 |
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Aquasition V LLC
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Delaware
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86-2821560 |
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Falcon Aero Holdings LLC
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Delaware
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N/A(2)
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Falcon Aero Holdco LLC
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Delaware
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N/A(2)
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Green Hell LLC
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Delaware
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86-1429753 |
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Seaquester LLC
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Delaware
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87-0959221 |
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Seaquestration LLC
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Delaware
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87-0958946 |
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(1)
The address for the additional registrants is 5718 Westheimer Road, Suite 700, Houston, Texas 77057, and the telephone number for each additional registrant is (713) 626-8525. The Primary Industrial Classification Code for the additional registrants is 1311.
(2)
Single Member LLC with no EIN.
EXPLANATORY NOTE
We are filing this registration statement on Form S-3 with the Securities and Exchange Commission using a “shelf” registration process to replace our prior registration statement on Form S-3 (File No. 333-260248) originally filed on October 14, 2021 and declared effective on October 25, 2021 (the “Prior Registration Statement”), in accordance with applicable Securities and Exchange Commission regulations. Under this shelf registration statement, we may, from time to time, sell any combination of the securities described herein, in one or more offerings, up to a maximum aggregate offering price of $500,000,000. Under this shelf registration statement, the selling shareholder (as defined herein) may, from time to time, sell in one or more offerings, up to a maximum of 50,605,082 shares of common stock. Pursuant to Rule 415(a)(5)(ii) under the Securities Act of 1933, as amended, by filing this shelf registration statement, we may issue and sell securities covered by the Prior Registration Statement until the earlier of (i) the effective date of this shelf registration statement and (ii) April 23, 2025, which is 180 days after the third-year anniversary of the effective date of the Prior Registration Statement.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 10, 2024
PROSPECTUS
W&T OFFSHORE, INC.
$500,000,000
Debt Securities
Guarantees of Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
Up to 50,605,082 Shares of Common Stock Offered by the Selling Shareholder
This prospectus relates to the offer and sale of our securities from time to time in one or more offerings and in classes or series and in amounts, at prices and on terms that we will determine at the time of the offering. Debt securities and preferred stock may be convertible into debt securities, preferred stock or common stock. Any debt securities we offer pursuant to this prospectus may be fully and unconditionally guaranteed by certain of our subsidiaries, including W & T Energy VI, LLC, W & T Energy VII, LLC, Aquasition III LLC, Aquasition IV LLC, Aquasition V LLC, Falcon Aero Holdings LLC, Falcon Aero Holdco LLC, Green Hell LLC, Seaquester LLC and Seaquestration LLC.
This prospectus also covers the offering for resale, from time to time, in one or more offerings, of up to 50,605,082 shares of common stock owned by the selling shareholder, Tracy W. Krohn (together with certain entities controlled by him that own shares of common stock registered hereby, the “selling shareholder”). Mr. Krohn founded our company and acquired these shares of common stock in a series of recapitalization transactions prior to our initial public offering in 2005, in open market purchases and as compensation for his services as our Chairman, Chief Executive Officer and President. Mr. Krohn may sell none, some or all of the shares offered by this prospectus. Sales may be at fixed prices, which may be changed, at prices related to the prevailing market prices at the time of sale or at negotiated prices. Such sales may occur in the open market, in negotiated transactions and in a combination of these methods. We will not receive any of the proceeds from any sale of Mr. Krohn’s shares covered by this prospectus.
Unless we inform you otherwise in a prospectus supplement or free writing prospectus, we intend to use the net proceeds from the sale of the Securities we are offering for general corporate purposes. 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. We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should carefully read this prospectus and any prospectus supplement or amendment before you invest. You also should read the documents we have referred you to in the “Where You Can Find More Information” section of this prospectus for information about us and our financial statements.
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 our securities involves risks. Please see “Risk Factors,” beginning on page 4 of this prospectus, for a discussion of certain risks that you should consider in connection with an investment in the securities.
We and the selling shareholder may offer the securities directly or through underwriters, agents or dealers, or directly to purchasers, on a continuous or delayed basis. The supplements to this prospectus will designate the terms of our plan of distribution. See the discussion under the heading “Plan of Distribution” for more information on the topic.
Our executive offices are located at 5718 Westheimer Road, Suite 700, Houston, Texas 77057 and our telephone number is (713) 626-8525. Our common stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “WTI.” On October 9, 2024, the last reported sale price of common stock on the NYSE was $2.26 per share. We will provide information in the prospectus supplement for the trading market, if any, for any debt securities, guarantees of debt securities, preferred stock, depositary shares or warrants we may offer.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THE DISCLOSURES IN THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus is dated , 2024.
TABLE OF CONTENTS
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This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) pursuant to which we or the selling shareholder named herein may, from time to time, offer and sell or otherwise dispose of the securities covered by this prospectus. It is important for you to read and consider all information contained in this prospectus, including the documents incorporated by reference therein, in making your investment decision. You should also read and consider the information in the documents to which we have referred you under the caption “Where You Can Find More Information” in this prospectus.
You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectuses we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not, and the selling shareholder is not, making an offer to sell these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information in this prospectus or any prospectus supplement or in any document incorporated by reference in this prospectus or any prospectus supplement is accurate as of any date other than the date of the document containing the information, even though this prospectus may be delivered or the securities may be sold or otherwise disposed of on a later date.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. Please read “Risk Factors” and “Cautionary Statements Regarding Forward-Looking Statements.”
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus, and the selling shareholder may sell some or all of his shares of common stock, in one or more offerings. For further information about our business and the securities, you should refer to the registration statement and its exhibits. The exhibits to the registration statement contain the full text of certain contracts and other important documents summarized in this prospectus. Because these summaries may not contain all the information that you may find important in deciding whether to purchase the securities we may offer, you should review the full text of these documents. You can obtain the registration statement from the SEC as indicated under the heading “Where You Can Find More Information.”
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of the offering and the offered securities. Each time the selling shareholder sells any common stock offered by this prospectus, the selling shareholder is required to provide you with this prospectus and the related prospectus supplement containing specific information about the selling shareholder and the terms of the common stock being offered in the manner required by the Securities Act of 1933, as amended (the “Securities Act”). The prospectus supplement may also add, update or change information contained in this prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by us in a prospectus supplement. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
Unless the context requires otherwise or unless otherwise noted, all references in this prospectus or any accompanying prospectus supplement (i) to “W&T Offshore,” “we,” “us” or “our” are to W&T Offshore, Inc. and its subsidiaries and (ii) the “selling shareholder” are to Tracy W. Krohn and certain entities controlled by him that own shares of common stock registered hereby that are identified in this prospectus under the caption “Selling Shareholder” or any accompanying prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a Registration Statement on Form S-3 to register the offer and sale of the securities covered hereby. This prospectus, which forms part of the registration statement, does not contain all of the information included in that registration statement. For further information about us and the securities covered by this prospectus, you should refer to the registration statement and its exhibits. Certain information is also incorporated by reference in this prospectus as described under “Information Incorporated by Reference.”
We are subject to the information and periodic reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and, in accordance therewith, file periodic reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information are available at the website of the SEC at http://www.sec.gov. We also furnish our shareholders with annual reports containing our financial statements audited by an independent registered public accounting firm and quarterly reports containing our unaudited financial information. We maintain a website at www.wtoffshore.com. You may access our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports, filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon as reasonably practicable after this material is electronically filed with, or furnished to, the SEC. Information contained on, or that is or becomes accessible through, our website does not constitute a part of this prospectus. The reference to our website or web address does not constitute incorporation by reference of the information contained at that site.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it. This means that we can disclose information to you by referring you to those documents. The documents that have been incorporated by reference are an important part of the prospectus, and you should review that information in order to understand the nature of any investment by you in our securities. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update information previously filed with the SEC, and may update or replace information in this prospectus and information previously filed with the SEC. We incorporate by reference the following documents that we have filed with the SEC (other than any portions of these documents that were deemed to have been furnished and not filed in accordance with the SEC rules, including pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, including any financial statements or exhibits related thereto and furnished pursuant to Item 9.01), unless otherwise indicated herein:
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our Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024 filed with the SEC on May 10, 2024 and for the fiscal quarter ended June 30, 2024 filed with the SEC on August 7, 2024;
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our Current Reports on Forms 8-K filed on January 2, 2024, January 26, 2024, March 1, 2024, March 18, 2024, March 28, 2024, April 11, 2024, May 1, 2024, May 24, 2024, May 30, 2024, June 17, 2024, July 1, 2024 and September 3, 2024; and
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the description of our common stock included on our Form 8-A, filed with the SEC on January 24, 2005 (File No. 001-32414), and any subsequent amendment or report filed for the purpose of updating such description, including Exhibit 4.3 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on March 5, 2020.
All documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all such documents we may file with the SEC after the date of the initial registration and prior to the effectiveness of the registration statement (excluding, in each case, any information deemed furnished rather than filed), shall be deemed to be incorporated by reference in this prospectus until the termination of each offering under this prospectus.
Upon request, we will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the reports or documents that have been incorporated by reference in this prospectus. If you would like a copy of any of these documents, at no cost, please write or call us at:
Sameer Parasnis
Chief Financial Officer
W&T Offshore, Inc.
5718 Westheimer Road, Suite 700
Houston, TX 77057
(713) 626-8525
Any statement contained in a document which is incorporated by reference in this prospectus is automatically updated and superseded if information contained in the prospectus modifies or replaces this information.
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risk factors and all of the other information included in, or incorporated by reference into, this prospectus, including those included in our Annual Report on Form 10-K for the year ended December 31, 2023, in evaluating an investment in our securities. If any of these risks were to occur, our business, financial condition or results of operations could be adversely affected. In that case, the trading price of our common stock or debt securities could decline and you could lose all or part of your investment. When we offer and sell any securities pursuant to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
The information included or incorporated by reference in this prospectus includes “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical fact included or incorporated by reference in this prospectus, regarding our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are forward-looking statements. These forward-looking statements are based on certain assumptions and analyses made by us in light of our experience and perception of historical trends, current conditions, expected future developments and other factors we believe are appropriate under the circumstances. Although we believe that these forward-looking statements are based upon reasonable assumptions, they are subject to several risks and uncertainties and are made in light of information currently available to us. If the risks or uncertainties materialize or the assumptions prove incorrect, our results may differ materially from those expressed or implied by such forward-looking statements and assumptions.
When used in this prospectus, the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “project,” “forecast,” “may,” “objective,” “plan,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. Readers are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date hereof. We assume no obligation, nor do we intend, to update these forward-looking statements, unless required by law.
The information included in this prospectus includes forward-looking statements that involve risks and uncertainties that could materially affect our expected results of operations, liquidity, cash flows and business prospects. Such statements specifically include our expectations as to our future financial position, liquidity, cash flows, results of operations and business strategy, potential acquisition opportunities, other plans and objectives for operations, capital for sustained production levels, expected production and operating costs, reserves, hedging activities, capital expenditures, return of capital, improvement of recovery factors and other guidance. Actual results may differ from anticipated results, sometimes materially, and reported results should not be considered an indication of future performance. For any such forward-looking statement that includes a statement of the assumptions or bases underlying such forward-looking statement, we caution that, while we believe such assumptions or bases to be reasonable and make them in good faith, assumed facts or bases almost always vary from actual results, sometimes materially. You should carefully consider the statements under the heading “Risk Factors” herein, in our Annual Report on Form 10-K for the year ended December 31, 2023 and the other documents incorporated by reference herein that describe factors that could cause our actual results to differ from those set forth in the forward-looking statements.
Factors (but not necessarily all the factors) that could cause results to differ include, among others:
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the regulatory environment, including availability or timing of, and conditions imposed on, obtaining and/or maintaining permits and approvals, including those necessary for drilling and/or development projects;
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the impact of current, pending and/or future laws and regulations, and of legislative and regulatory changes and other government activities, including those related to permitting, drilling, completion, well stimulation, operation, maintenance or abandonment of wells or facilities, managing energy, water, land, greenhouse gases or other emissions, protection of health, safety and the environment, or transportation, marketing and sale of our products;
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inflation levels;
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global economic trends, geopolitical risks and general economic and industry conditions, such as the global supply chain disruptions and the government interventions into the financial markets and economy in response to inflation levels and world health events;
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volatility of oil, natural gas liquids (“NGLs”) and natural gas prices;
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the global energy future, including the factors and trends that are expected to shape it, such as concerns about climate change and other air quality issues, the transition to a low-emission economy and the expected role of different energy sources;
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supply of and demand for oil, NGLs and natural gas, including due to the actions of foreign producers, importantly including OPEC and other major oil producing companies (“OPEC+”) and change in OPEC+’s production levels;
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disruptions to, capacity constraints in, or other limitations on the pipeline systems that deliver our oil and natural gas and other processing and transportation considerations;
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inability to generate sufficient cash flow from operations or to obtain adequate financing to fund capital expenditures, meet our working capital requirements or fund planned investments;
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price fluctuations and availability of natural gas and electricity;
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our ability to use derivative instruments to manage commodity price risk;
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our ability to meet our planned drilling schedule, including due to our ability to obtain permits on a timely basis or at all, and to successfully drill wells that produce oil and natural gas in commercially viable quantities;
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uncertainties associated with estimating proved reserves and related future cash flows;
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our ability to replace our reserves through exploration and development activities;
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drilling and production results, lower-than-expected production, reserves or resources from development projects or higher-than-expected decline rates;
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our ability to obtain timely and available drilling and completion equipment and crew availability and access to necessary resources for drilling, completing and operating wells;
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changes in tax laws;
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effects of competition;
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uncertainties and liabilities associated with acquired and divested assets;
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our ability to make acquisitions and successfully integrate any acquired businesses;
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asset impairments from commodity price declines;
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large or multiple customer defaults on contractual obligations, including defaults resulting from actual or potential insolvencies;
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geographical concentration of our operations;
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the creditworthiness and performance of our counterparties with respect to our hedges;
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impact of derivatives legislation affecting our ability to hedge;
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failure of risk management and ineffectiveness of internal controls;
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catastrophic events, including tropical storms, hurricanes, earthquakes, pandemics or other world health events;
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environmental risks and liabilities under U.S. federal, state, tribal and local laws and regulations (including remedial actions);
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potential liability resulting from pending or future litigation;
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our ability to recruit and/or retain key members of our senior management and key technical employees;
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information technology failures or cyberattacks;
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governmental actions and political conditions, as well as the actions by other third parties that are beyond our control; and
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other factors discussed elsewhere in this prospectus and under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2023.
Reserve engineering is a process of estimating underground accumulations of oil, NGLs and natural gas that cannot be measured in an exact way. The accuracy of any reserve estimate depends on the quality
of available data, the interpretation of such data and price and cost assumptions made by reserve engineers. In addition, the results of drilling, testing and production activities may justify revisions of estimates that were made previously. If significant, such revisions would change the schedule of any further production and our development program. Accordingly, reserve estimates may differ significantly from the quantities of natural gas, oil and NGLs that are ultimately recovered.
All forward-looking statements, expressed or implied, included in this prospectus are expressly qualified in their entirety by this cautionary statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements that we or persons acting on our behalf may issue.
THE COMPANY
We are an independent oil and natural gas producer, active in the exploration, development and acquisition of oil and natural gas properties in the Gulf of Mexico. As of June 30, 2024, we hold working interests in 63 producing offshore fields in federal and state waters (which include 55 fields in federal waters and 8 in state waters). We currently have under lease approximately 678,100 gross acres (520,400 net acres) spanning across the outer continental shelf off the coasts of Louisiana, Texas, Mississippi and Alabama, with approximately 5,600 gross acres in Alabama state waters, 519,000 gross acres on the conventional shelf and approximately 153,500 gross acres in the deepwater. A majority of our daily production is derived from wells we operate.
W&T Offshore, Inc. is a Texas corporation. Our corporate offices are located at 5718 Westheimer Road, Suite 700, Houston, TX 77057. Our phone number is (713) 626-8525. Our website address is www.wtoffshore.com. Our periodic reports and other information filed with or furnished to the SEC are available, free of charge, through our website, as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC. Information on our website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we expect to use the net proceeds from the sale of our securities for general corporate purposes, which may include, among other things:
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reduction or refinancing of debt or other corporate obligations;
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additions to our working capital;
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capital expenditures; and
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potential future acquisitions.
Any specific allocation of the net proceeds of an offering of securities to a specific purpose will be determined at the time of the offering and will be described in an accompanying prospectus supplement.
In the event the selling shareholder sells any shares of common stock by means of this prospectus, we will not receive any proceeds from such sale.
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 (as defined below) 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 W&T Offshore, Inc. and our creditors, including holders of the Debt Securities, to participate in the assets of any subsidiary upon the latter’s liquidation or reorganization, will be subject to the prior claims of the subsidiary’s 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 and is qualified in its entirety by express reference to the provisions of the Indentures. 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, certain subsidiaries of W&T Offshore, Inc. (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 and premium, if any, of the Debt Securities will be payable or the method used to determine those dates;
(6)
the interest rate that the Debt Securities will bear, any date from which interest will accrue, any interest payment dates and regular record dates for interest payments, or the method used to determine any of the foregoing;
(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 provisions for convertibility or exchangeability of the Debt Securities into or for any other securities;
(15)
any addition to or change in the covenants in the Indenture applicable to the Debt Securities; and
(16)
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 United States 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 United States federal income tax or other considerations applicable to any Debt Securities that are denominated in a currency or currency unit other than United States 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 subordinated 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:
•
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;
•
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
•
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.
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, fees, indemnifications, reimbursements, damages or otherwise. The Subsidiary Guarantors will also pay all fees, costs, liabilities and 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 Guarantor’s 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 relevant 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.
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 minimum denominations of $2,000 and integral multiples of $1,000 in excess 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 or the registrar 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, (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 or (3) register the transfer of or exchange a Debt Security between a record date and the next succeeding interest payment date.
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 120 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
(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 is 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 Depositary’s or any participant’s 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, we will designate a Paying Agent (which may be the corporate trust office of the Trustee) for payments with respect to Senior Debt Securities of each series, and we will designate a Paying Agent (which may be the corporate trust office of the Trustee) under the Subordinated Indenture in the City of New York 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.
Subject to applicable abandoned property laws, 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.
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 by supplemental indenture 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, 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 $50.0 million;
(7)
any judgment or decree for the payment of money in excess of $50.0 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
(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 Guarantor’s 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 W&T Offshore, 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 W&T Offshore, 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, see “— Modification and Waiver” below.
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 (and if requested, provided) to such Trustee security or indemnity satisfactory to the Trustee. 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 such 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 security or indemnity reasonably satisfactory 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, to their knowledge, as to whether or not we 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.
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 Guarantor’s 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 provide for uncertificated notes in addition to or in place of certificated notes;
(4)
to secure the Debt Securities;
(5)
to establish the form or terms of any series of Debt Securities;
(6)
to evidence and provide for the acceptance of appointment under the Indenture of a successor Trustee;
(7)
to cure any ambiguity, defect or inconsistency;
(8)
to add Subsidiary Guarantors; or
(9)
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 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;
(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 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 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 by us 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:
(1) either:
(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
(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; and
(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.
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.
No Personal Liability of Directors, Officers, Employees and Shareholders
No director, officer, employee, incorporator, shareholder, member, partner or trustee of us or any Subsidiary Guarantor, as such, shall have any liability for any obligations of us or any Subsidiary Guarantor under the Debt Securities, the Indentures or any Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Debt 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 Debt Securities. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
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 or electronically in the case of Global Securities.
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.
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.
DESCRIPTION OF CAPITAL STOCK
We or the selling shareholder may offer our common stock, $0.00001 par value per share, and preferred stock, $0.00001 par value per share, under this prospectus. Our authorized capital stock currently consists of 400,000,000 shares of common stock and 20,000,000 shares of preferred stock. At September 30, 2024, 147,345,038 shares of our common stock were issued and outstanding and no shares of preferred stock were issued and outstanding. The following summary of certain provisions of our capital stock does not purport to be complete and is subject to and is qualified in its entirety by our articles of incorporation and bylaws, which are incorporated in this prospectus by reference as exhibits to the registration statement of which this prospectus forms a part, and by the provisions of applicable law.
Common Stock
Holders of common stock are entitled to one vote per share with respect to each matter presented to our shareholders on which the holders of common stock are entitled to vote. Except as may be provided in connection with any preferred stock in a certificate of designation filed pursuant to the Texas Business Organizations Code (the “TBOC”) or as may otherwise be required by law or our articles of incorporation, our common stock is the only series of capital stock entitled to vote in the election of directors and on all other matters presented to our shareholders. The common stock does not have cumulative voting rights. No share of common stock affords any preemptive rights or is convertible, redeemable, assessable or entitled to the benefits of any sinking or repurchase fund.
Subject to the prior rights of holders of preferred stock, if any, holders of common stock are entitled to receive dividends as may be lawfully declared from time to time by our board of directors. Upon our liquidation, dissolution or winding up, whether voluntary or involuntary, holders of common stock will be entitled to receive such assets as are available for distribution to our shareholders after there shall have been paid or set apart for payment the full amounts necessary to satisfy any preferential or participating rights to which the holders of each outstanding series of preferred stock are entitled by the express terms of the series.
The shares of our common stock presently outstanding are fully paid and non-assessable, and any shares issued by us pursuant to this prospectus will be fully paid and non-assessable when issued. Our common stock trades on the New York Stock Exchange (“NYSE”) under the symbol “WTI.”
Preferred Stock
Our board is empowered, without approval of our shareholders, to cause shares of preferred stock to be issued from time to time in one or more series, with the numbers of shares of each series and the terms of the shares of each series as fixed by our board. Among the specific matters that may be determined by our board are:
•
the designation of each series;
•
the number of shares of each series;
•
the rights in respect of dividends of each series, if any;
•
whether dividends, if any, shall be cumulative or non-cumulative;
•
the terms of voting rights, if any;
•
rights and terms of conversion, if any;
•
the terms of redemption, repurchase obligation or sinking fund, if any;
•
the rights of the shares of each series in the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs and the relative rights of priority, if any, of payment of shares of that series;
•
conditions or restrictions on the creation of indebtedness, if any;
•
restrictions on the issuance of additional preferred stock or other capital stock, if any; and
•
restrictions on the payment of dividends on shares ranking junior to the preferred stock.
No shares of preferred stock are currently outstanding and we have no current plans to issue preferred stock. The issuance of shares of preferred stock, or the issuance of rights to purchase preferred stock, could be used to discourage an unsolicited acquisition proposal. For example, a business combination could be impeded by the issuance of a series of preferred stock containing class voting rights that would enable the holder or holders of such series to block any such transaction. Alternatively, a business combination could be facilitated by the issuance of a series of preferred stock having sufficient voting rights to provide a required percentage vote of our shareholders. In addition, under some circumstances, the issuance of preferred stock could adversely affect the voting power and other rights of the holders of common stock. Although prior to issuing any series of preferred stock our board is required to make a determination as to whether the issuance is in the best interests of our shareholders, our board could act in a manner that would discourage an acquisition attempt or other transaction that some, or a majority, of our shareholders might believe to be in their best interests or in which our shareholders might receive a premium for their stock over prevailing market prices of such stock. Our board does not at present intend to seek shareholder approval prior to any issuance of currently authorized preferred stock, unless otherwise required by law or applicable stock exchange requirements.
Anti-Takeover Provisions under Texas Law, our Articles of Incorporation and Bylaws
We are a Texas corporation and, are subject to Subchapter M of Chapter 21 of the TBOC regarding affiliated business combinations. In general, this law prevents us from engaging in a business combination with an affiliated shareholder, or any affiliate or associate of an affiliated shareholder, for the three-year period immediately after the date such person became an affiliated shareholder, unless:
•
our board of directors approves the acquisition of shares that causes such person to become an affiliated shareholder before the date such person becomes an affiliated shareholder;
•
our board of directors approves the business combination before the date such person becomes an affiliated shareholder; or
•
holders of at least two-thirds of our outstanding voting shares not beneficially owned by the affiliated shareholder or its affiliates or associates approve the business combination at least six months after the date such person becomes an affiliated shareholder.
Under this law, any person that owns or has owned 20% or more of our voting shares during the three-year period preceding a business combination is an “affiliated shareholder.” The law defines “business combination” generally as including:
•
mergers, share exchanges or conversions involving an affiliated shareholder;
•
dispositions of assets involving an affiliated shareholder:
•
having an aggregate value equal to 10% or more of the market value of our assets,
•
having an aggregate value equal to 10% or more of the market value of our outstanding common stock, or
•
representing 10% or more of our earning power or net income;
•
issuances or transfers of securities by us to an affiliated shareholder other than on a pro rata basis;
•
plans or agreements relating to our liquidation or dissolution involving an affiliated shareholder;
•
reclassifications, recapitalizations, distributions or other transactions that would have the effect of increasing an affiliated shareholders’ percentage ownership of our outstanding voting stock; and
•
the receipt of tax, guarantee, pledge, loan or other financial benefits by an affiliated shareholder other than proportionally as one of our shareholders.
Liability and Indemnification of Officers and Directors
Our articles of incorporation and bylaws provide for indemnification of our directors to the fullest extent permitted by applicable law. Subchapter C of Chapter 8 of the TBOC provides that a Texas corporation may indemnify its directors and officers against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in connection with any suit or proceeding, whether civil, criminal, administrative or investigative if, in connection with the matters in issue, they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation and, in connection with any criminal suit or proceeding, if in connection with the matters in issue, they had no reasonable cause to believe their conduct was unlawful. In addition, we have entered into indemnification agreements with our directors and certain officers. These provisions and agreements may have the practical effect in certain cases of eliminating the ability of our shareholders to collect monetary damages from directors and executive officers. We believe that these contractual agreements and the provisions in our articles of incorporation and bylaws are necessary to attract and retain qualified persons as directors and executive officers.
Written Consent of Shareholders
Our articles of incorporation provide that any action required by the TBOC, as presently in effect or hereafter amended, to be taken at any annual or special meeting of our shareholders, or any action which may be taken at any annual or special meeting of our shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting for the action so taken, shall be signed by the holder or holders of shares not having less than the minimum number of votes that would be necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted. Special meetings of the shareholders may be called only by holders of not less than 25% of all the shares entitled to vote or by the Chairman of the Board, the President or the Board of Directors.
Advance Notice Procedure for Shareholder Proposals
Our bylaws establish an advance notice procedure for the nomination of candidates for election as directors as well as for shareholder proposals to be considered at annual meetings of shareholders. In general, notice of intent to nominate a director must contain specific information concerning the person to be nominated and must be delivered to and received at our principal executive offices as follows:
•
with respect to an election to be held at the annual meeting of shareholders, not less than 90 days nor more than 120 days prior to the first anniversary date of the preceding year’s annual meeting of shareholders; and
•
with respect to an election to be held at a special meeting of shareholders for the election of directors, not earlier than the close of business on the 120th day prior to the special meeting and not later than the close of business on the later of the 90th day prior to the special meeting or the 10th day following the day on which public disclosure is first made of the date of the special meeting.
Notice of shareholders’ intent to raise business at an annual meeting must be delivered to and received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the preceding year’s annual meeting of shareholders. These procedures may operate to limit the ability of shareholders to bring business before a shareholders meeting, including with respect to the nomination of directors or considering any transaction that could result in a change of control.
Removal of Director
Our bylaws provide that neither any director nor the board of directors may be removed without cause and that any removal for cause would require the affirmative vote of the holders of at least 60% of the voting power of the outstanding capital stock entitled to vote for the election of directors.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
DESCRIPTION OF DEPOSITARY SHARES
General
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we decide to offer fractional shares of preferred stock, we will issue receipts for depositary shares. Each depositary share will represent a fraction of a share of a particular series of preferred stock. The prospectus supplement will indicate that fraction. The shares of preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a bank or trust company that meets certain requirements and is selected by us (the “Bank Depositary”). Each owner of a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering.
We have summarized selected provisions of a depositary agreement and the related depositary receipts. The summary is not complete. The forms of the depositary agreement and the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC via a Current Report on Form 8-K prior to our offering of the depositary shares, and you should read such documents for provisions that may be important to you.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the Bank Depositary will distribute such dividends to the record holders of such depositary shares. If the distributions are in property other than cash, the Bank Depositary will distribute the property to the record holders of the depositary shares. However, if the Bank Depositary determines that it is not feasible to make the distribution of property, the Bank Depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the Bank Depositary will redeem the depositary shares from the proceeds received by the Bank Depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the Bank Depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the Bank Depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date (which will be the same date as the record date for the preferred stock) may instruct the Bank Depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The Bank Depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action which the Bank Depositary deems necessary in order to enable the Bank Depositary to do so. The Bank Depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the Bank Depositary and us. However, any amendment that materially and adversely alters the rights of the holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the Bank Depositary or us only if (1) all
outstanding depositary shares have been redeemed or (2) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and such distribution has been distributed to the holders of depositary receipts.
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the Bank Depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement to be for their accounts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the Bank Depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial shares of preferred stock will not be issued. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the Bank Depositary will deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The Bank Depositary will forward to holders of depositary receipts all reports and communications from us that are delivered to the Bank Depositary and that we are required to furnish to the holders of the preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the Bank Depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and neither of us will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. Further, both of us may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The Bank Depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the Bank Depositary. Any such resignation or removal will take effect upon the appointment of a successor Bank Depositary and its acceptance of such appointment. Such successor Bank Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our common stock and preferred 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:
(1)
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;
(2)
the date on which the right to exercise the warrants commences and the date on which such right expires (the “Expiration Date”);
(3)
United States federal income tax consequences applicable to the warrants;
(4)
the amount of the warrants outstanding as of the most recent practicable date; and
(5)
any other terms of the warrants.
Warrants will be offered and exercisable for United States dollars only. Warrants will be issued in registered form only. Each warrant will entitle its holder to purchase such number of shares of common stock or preferred 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.
SELLING SHAREHOLDER
This prospectus also covers the offering for resale, from time to time, in one or more offerings, of up to 50,605,082 shares of common stock owned by the selling shareholder, Tracy W. Krohn. Mr. Krohn founded our company and acquired these shares of common stock primarily in a series of recapitalization transactions prior to our initial public offering in 2005, and also by open market purchases and as compensation for his services as our Chairman, Chief Executive Officer and President. Mr. Krohn has served as our Chief Executive Officer since he founded the Company in 1983 and as Chairman since 2004. He also served as President of the Company until September 2008 and again starting in March 2017. Mr. Krohn has informed the Company that as of the date of this prospectus, he has no present intention to sell any of the shares of common stock registered for resale by means of this prospectus.
The following table sets forth information relating to the selling shareholder as of September 30, 2024, based on information supplied to us by the selling shareholder on or prior to that date. We have not sought to verify such information. Information concerning the selling shareholder may change over time, including by the addition of additional selling shareholders. If necessary, we will supplement this prospectus accordingly. The selling shareholder may hold or acquire at any time common stock in addition to the shares offered by this prospectus and may have acquired additional common stock since the date on which the information reflected herein was provided to us. In addition, the selling shareholder may have sold, transferred or otherwise disposed of some or all of his common stock since the date on which the information reflected herein was provided to us and may in the future sell, transfer or otherwise dispose of some or all of its common stock in private placement transactions exempt from or not subject to the registration requirements of the Securities Act.
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Selling Shareholder
|
|
|
Shares Owned
Prior to Offering
|
|
|
Shares That
May Be Offered
|
|
|
Shares Owned
After Offering(1)
|
|
|
Tracy W. Krohn(2)
|
|
|
|
|
48,328,019 |
|
|
|
|
|
50,605,082(3) |
|
|
|
|
|
0 |
|
|
(1)
Assumes the sale of all shares offered by this prospectus by the selling shareholder.
(2)
Includes 46,980,581 shares owned held by the Tracy William Krohn Living Trust, dated May 31, 2012, 623,969 shares held by the Tracy William Krohn 2008 JFF Trust, dated December 3, 2011 and 141,844 shares held by the Tracy William Krohn Exempt AKF Descendant’s Trust, dated November 1, 2012. Tracy W. Krohn is the beneficiary and trustee of these trusts and may be deemed to have sole voting and dispositive power with respect to these shares.
(3)
Includes up to 2,277,063 shares issuable to Tracy W. Krohn upon vesting of an equal number of outstanding restricted stock units (“RSUs”).
Each time the selling shareholder sells any common stock offered by this prospectus, the selling shareholder is required to provide you with this prospectus and any related prospectus supplement containing specific information about the selling shareholder and the terms of the common stock being offered in the manner required by the Securities Act. Such prospectus supplement will set forth the following information with respect to the selling shareholder:
•
the name of the selling shareholder;
•
the nature of any position, office or any other material relationship that the selling shareholder has had within the last three years with us or any of our affiliates;
•
the number of shares owned by the selling shareholder prior to the offering;
•
the number of shares to be offered for the selling shareholder’s account; and
•
the number of and (if one percent or greater) the percentage of shares to be owned by the selling shareholder after the completion of the offering.
Material Relationship with the Selling Shareholder
The description of our relationship with the Selling Shareholder set forth in “Certain Relationships and Related Transactions” in our Definitive Proxy Statements on Schedule 14A filed on April 29, 2024, May 1, 2023 and March 24, 2022 is incorporated herein by reference.
PLAN OF DISTRIBUTION
We may sell securities offered by this prospectus and any accompanying prospectus supplement from time to time in one or more transactions, including without limitation:
•
through agents;
•
to or through underwriters, brokers or dealers;
•
sales in other ways not involving market makers or established trading markets, including direct sales to one or more purchasers, including existing shareholders;
•
in “at the market offerings” offerings or sales “at the market,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise;
•
on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
•
in the over-the-counter market;
•
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
•
through the writing of options on the shares or other hedging transactions, whether or not the options or such other derivative securities are listed on an exchange;
•
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•
block transactions (which may involve crosses) in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•
purchases by a broker-dealer as principal and resale by the broker-dealer for its account pursuant to this prospectus;
•
a special offering, an exchange distribution or a secondary distribution in accordance with applicable NYSE or other stock exchange rules;
•
privately negotiated transactions;
•
short sales;
•
broker-dealers may agree with the selling shareholder to sell a specified number of such shares at a stipulated price per share;
•
a combination of any such methods of sale; and
•
any other method permitted pursuant to applicable law.
We may also sell securities under Rule 144 under the Securities Act, in each case if available, rather than under this prospectus.
We will prepare a prospectus supplement for each offering that will disclose the terms of the offering, including the name or names of any underwriters, dealers or agents, the purchase price of the securities and the proceeds to us from the sale, any underwriting discounts and other items constituting compensation to underwriters, dealers or agents and any delayed delivery arrangements.
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price, at prevailing market prices at the time of the sale, at prices related to such prevailing market prices at varying prices determined at the time of sale, or at negotiated prices or prices.
Agents, Underwriters and Dealers
Securities offered by us pursuant to this prospectus may be sold through agents designated by us. If agents are used in an offering, the names of the agents and the terms of the agency will be specified in a
prospectus supplement. Unless otherwise indicated in the prospectus supplement, any such agent is acting on a best efforts basis for the period of its appointment.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to certain conditions. Unless otherwise indicated in the prospectus supplement, the underwriters must purchase all the securities of the series offered by a prospectus supplement if any of the securities are purchased. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
If dealers are used in an offering, we may sell the securities to the dealers as principals. The dealers then may resell the securities to the public at varying prices which they determine at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
Direct Sales
Securities offered by us pursuant to this prospectus may also be sold directly by us. In this case, no underwriters or agents would be involved. 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.
At-the-Market Offerings
Underwriters or agents could make sales of our common stock that we may offer under this prospectus in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market offering” as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the NYSE, the existing trading market for our common stock, or sales made to or through a market maker other than on an exchange.
To the extent that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other at-the-market offering arrangement with such underwriters or agents. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell common stock through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell common stock on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The agreement will provide that any securities sold will be sold at prices related to the then-prevailing market prices for such securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our common stock. The terms of each such agreement will be set forth in more detail in the applicable prospectus supplement and any related free writing prospectus. In the event that any underwriter or agent acts as principal, or any broker-dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain, or otherwise affect the price of common stock. Any such activities will be described in the prospectus supplement or any related free writing prospectus relating to the transaction.
Delayed Delivery Contracts
We may authorize agents, underwriters or dealers to solicit offers by certain institutional investors to purchase offered securities providing for payment and delivery on a future date specified in the prospectus supplement. Institutional investors to which such offers may be made, when authorized, include commercial and savings banks, insurance companies, pension funds, investment companies, education and charitable institutions and such other institutions as may be approved by us. The obligations of any such purchasers under such delayed delivery and payment arrangements will be subject to the condition that the purchase of the offered securities will not at the time of delivery be prohibited under applicable law. The underwriters and such agents will not have any responsibility with respect to the validity or performance of such contracts.
General Information
Underwriters, dealers and agents that participate in the distribution of the offered securities may be underwriters as defined in the Securities Act, and any discounts or commissions received by them from us and any profit on the resale of the offered securities by them may be treated as underwriting discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation described in the applicable prospectus supplement.
The securities (other than common stock) offered by this prospectus and any prospectus supplement, when first issued, will have no established trading market. Any underwriters or agents to or through whom such securities are sold by us for public offering and sale may make a market in such securities, but such underwriters or agents will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you as to the liquidity of the trading market for any such securities.
We may have agreements with the underwriters, dealers, agents 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 underwriters, dealers, agents or remarketing firms may be required to make.
Underwriters, dealers, agents and remarketing firms may be customers of, engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their businesses.
In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties, through a stock exchange, including block trades or ordinary broker’s transactions, or through broker-dealers acting either as principal or agent, or through an underwritten public offering, through privately negotiated transactions or through a combination of any such methods of sale. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out or hedge any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
In connection with offerings of securities under the registration statement of which this prospectus forms a part and in compliance with applicable law, underwriters, brokers or dealers may engage in transactions that stabilize or maintain the market price of the securities at levels above those that might otherwise prevail in the open market. Specifically, underwriters, brokers or dealers may over-allot in connection with offerings, creating a short position in the securities for their own accounts. For the purpose of covering a syndicate short position or stabilizing the price of the securities, the underwriters, brokers or dealers may place bids for the securities or effect purchases of the securities in the open market. Finally, the underwriters may impose a penalty whereby selling concessions allowed to syndicate members or other brokers or dealers for distribution of the securities in offerings may be reclaimed by the syndicate if the syndicate repurchases previously distributed securities in transactions to cover short positions, in stabilization transactions or otherwise. These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than the price that might otherwise prevail in the open market, and, if commenced, may be discontinued at any time.
Selling Shareholder
We are registering shares to permit the resale of these shares by certain holders from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale of shares by the selling shareholder.
The selling shareholder may sell all or a portion of the shares beneficially owned and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares are sold through underwriters or broker-dealers, the selling shareholder will be responsible for underwriting discounts or commissions or agent’s commissions. The shares may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions that may involve crosses or block transactions:
•
through agents;
•
to or through underwriters, brokers or dealers;
•
sales in other ways not involving market makers or established trading markets, including direct sales to one or more purchasers, including existing shareholders;
•
on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
•
in the over-the-counter market;
•
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
•
through the writing of options on the shares or other hedging transactions, whether or not the options or such other derivative securities are listed on an exchange;
•
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•
purchases by a broker-dealer as principal and resale by the broker-dealer for its account pursuant to this prospectus;
•
a special offering, an exchange distribution or a secondary distribution in accordance with applicable NYSE or other stock exchange rules;
•
privately negotiated transactions;
•
short sales;
•
sales pursuant to Rule 144;
•
broker-dealers may agree with the selling shareholder to sell a specified number of such shares at a stipulated price per share;
•
through the distributions of the securities held by the selling shareholder to its partners or members;
•
a combination of any such methods of sale; and
•
any other method permitted pursuant to applicable law.
If the selling shareholder effects such transactions by selling shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling shareholder or commissions from purchasers of the shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares or otherwise, the selling shareholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares in the course of hedging in positions they assume. The selling shareholder may also sell shares short and deliver shares covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling shareholder may also loan or pledge shares to broker-dealers that in turn may sell such shares.
The selling shareholder may pledge or grant a security interest in some or all of the shares owned by him and, if he defaults in the performance of his secured obligations, the pledgees or secured parties may offer and sell the shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provisions of the Securities Act, and we will amend, if necessary, the list of selling shareholders to include the pledgee, transferee or other successors in interest as selling shareholders under this prospectus. The selling shareholder also may transfer and donate the shares in
other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling shareholder and any broker-dealer participating in the distribution of the shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed, to any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholder and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states, the shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that the selling shareholder will sell any or all of the shares registered pursuant to the shelf registration statement, of which this prospectus forms a part.
The selling shareholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act or the Securities Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act (“Regulation M”), which may limit the timing of purchases and sales of any of the shares by the selling shareholder and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares to engage in market-making activities with respect to the shares. All of the foregoing may affect the marketability of the shares and the ability of any person or entity to engage in market-making activities with respect to the shares.
We will pay all expenses of the registration of the shares, including, without limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that the selling shareholder will pay all underwriting discounts and selling commissions, if any.
Once sold under the registration statement, of which this prospectus forms a part, the shares will be freely tradable in the hands of persons other than our affiliates.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by Kirkland & Ellis LLP, Houston, Texas. Legal counsel to any underwriters may pass upon legal matters for such underwriters.
EXPERTS
The consolidated financial statements of W&T Offshore, Inc. and subsidiaries appearing in W&T Offshore, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2023, and the effectiveness of W&T Offshore, Inc. and subsidiaries’ internal control over financial reporting as of December 31, 2023, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
Certain estimates of proved oil and gas reserves for W&T Offshore, Inc. incorporated by reference herein were based in part upon a report prepared by Netherland, Sewell & Associates, Inc., independent petroleum consultant. These estimates are included and incorporated herein in reliance on the authority of such firm as an expert in such matters.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses payable by W&T Offshore, Inc. (sometimes referred to as the “Company” in this Part II of the registration statement) in connection with the issuance and distribution of the securities. All the amounts shown are estimates, except the registration fee.
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Securities and Exchange Commission registration fee
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$543.00
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Fees and expenses of accountants
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*
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Fees and expenses of legal counsel
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*
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Printing expenses
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*
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Miscellaneous
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*
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Total
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*
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*
These fees are calculated based on the number of issuances and amount of securities to be offered and, accordingly, cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
Under the provisions of Chapter 8 of the TBOC, and Article VI of our Amended and Restated Bylaws, we may indemnify our directors and officers and purchase and maintain liability insurance for our directors, officers, employees and agents. Chapter 8 of the TBOC provides that any director or officer of a Texas corporation may be indemnified against judgments, penalties, fines, settlements and reasonable expenses actually incurred by him or her in connection with or in defending any action, suit or proceeding in which he or she is a party by reason of his or her position. With respect to any proceeding arising from actions taken in his or her official capacity as a director or officer, he or she may be indemnified so long as it shall be determined that he or she conducted himself in good faith and that he or she reasonably believed that such conduct was in the corporation’s best interests. In cases not concerning conduct in his or her official capacity as a director or officer, a director may be indemnified as long as he or she reasonably believed that his or her conduct was not opposed to the corporation’s best interests. In the case of any criminal proceeding, a director or officer may be indemnified if he or she had no reasonable cause to believe his or her conduct was unlawful. If a director or officer is wholly successful, on the merits or otherwise, in connection with such a proceeding, such indemnification is mandatory.
Our articles of incorporation provide for indemnification of our directors to the fullest extent permitted by applicable law. Article VI of our bylaws provides, in general, that we will indemnify our directors and officers under the circumstances permitted under the TBOC. In addition, we have entered into indemnification agreements with our directors and officers. These agreements provide that if a director is a party or is threatened to be made a party to any action, we will indemnify the director and hold the director harmless against any and all liabilities or losses incurred in connection with such action if it arises out of or is related to the fact that the director is or was serving as a director, to the fullest extent permitted by then applicable law. Further, if Texas law is amended to authorize the further elimination or limitation of directors’ liability, then the liability of our directors will automatically be limited to the fullest extent provided by law.
Item 16. Exhibits.
The following documents are filed as exhibits to this registration statement:
EXHIBIT INDEX
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Exhibit
Number
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Exhibit Description
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1.1**
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Form of Underwriting Agreement.
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3.1
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Second Amended and Restated Articles of Incorporation of W&T Offshore, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-Q, filed August 2, 2023).
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3.2
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Fourth Amended and Restated Bylaws of W&T Offshore, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K, filed April 26, 2023 (File No. 001-32414)).
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4.1
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4.2*
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4.3*
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4.4*
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4.5*
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4.6
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Indenture, dated as of January 27, 2023, by and among W&T Offshore, Inc., the guarantors party thereto and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K, filed on January 30, 2023 (File No. 001-32414)).
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4.7
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4.8
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First Supplemental Indenture, dated as of May 25, 2023, among Falcon Aero Holdings LLC, Falcon Aero Holdco LLC, W&T Offshore, Inc., the other Guarantors party thereto and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.1 of the Company’s Quarterly Report on Form 10-Q, filed August 2, 2023).
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4.9**
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Form of Warrant Agreement.
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4.10**
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Form of Warrant Certificate.
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4.11**
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Form of Debt Securities.
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4.12**
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Form of Depositary Agreement.
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4.13**
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Form of Depositary Receipt.
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5.1*
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22.1*
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23.1*
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23.2*
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23.3*
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24.1*
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25.1***
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Form T-1 Statement of Eligibility and Qualification respecting the Senior Indenture.
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25.2***
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Form T-1 Statement of Eligibility and Qualification respecting the Subordinated Indenture.
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107*
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*
Filed herewith.
**
To be filed by amendment or as an exhibit to a current report on Form 8-K of the registrant.
***
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
provided, however, that paragraphs (1)(i), (1)(ii) and 1(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(A)
Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
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:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
The undersigned registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(8)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended (the “Act”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)2 of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 10, 2024.
W & T OFFSHORE, INC.
By:
/s/ Tracy W. Krohn
Tracy W. Krohn
Chairman, Chief Executive Officer and President
POWER OF ATTORNEY
Each person whose signature appears below appoints George Hittner, Tracy W. Krohn and Sameer Parasnis, and each of them, any of whom may act without the joinder of the other, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons, in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Tracy W. Krohn
Tracy W. Krohn
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Chairman, Chief Executive Officer,
President and Director
(Principal Executive Officer)
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October 10, 2024
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/s/ Sameer Parasnis
Sameer Parasnis
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Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
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October 10, 2024
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/s/ Bart P. Hartman III
Bart P. Harman III
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Vice President and Chief Accounting Officer (Principal Accounting Officer)
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October 10, 2024
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/s/ Virginia Boulet
Virginia Boulet
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Director
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October 10, 2024
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/s/ John D. Buchanan
John D. Buchanan
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Director
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October 10, 2024
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/s/ Nancy Chang
Nancy Chang
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Director
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October 10, 2024
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Signature
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Title
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Date
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/s/ Daniel O. Conwill IV
Daniel O. Conwill IV
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Director
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October 10, 2024
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/s/ B. Frank Stanley
B. Frank Stanley
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Director
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October 10, 2024
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GUARANTOR SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 10, 2024.
W & T ENERGY VI, LLC
W & T ENERGY VII, LLC
AQUASITION III LLC
AQUASITION IV LLC
AQUASITION V LLC
FALCON AERO HOLDCO LLC
GREEN HELL LLC
SEAQUESTER LLC
SEAQUESTRATION LLC
By:
W&T OFFSHORE, INC., sole member of each of the above named entities
By:
/s/ Tracy W. Krohn
Tracy W. Krohn
Chairman, Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Tracy W. Krohn
Tracy W. Krohn
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Chairman, Chief Executive Officer, President and
Director of W&T Offshore, Inc.
(Principal Executive Officer)
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October 10, 2024
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/s/ Sameer Parasnis
Sameer Parasnis
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Executive Vice President and
Chief Financial Officer of W&T Offshore, Inc.
(Principal Financial Officer)
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October 10, 2024
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/s/ Bart P. Hartman III
Bart P. Harman III
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Vice President and Chief Accounting Officer of W&T Offshore, Inc.
(Principal Accounting Officer)
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October 10, 2024
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GUARANTOR SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 10, 2024.
FALCON AERO HOLDINGS LLC
By: FALCON AERO HOLDCO LLC, sole member of the above named entity
By:
/s/ Tracy W. Krohn
Tracy W. Krohn
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Tracy W. Krohn
Tracy W. Krohn
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Chief Executive Officer and President of Falcon
Aero Holdco LLC
(Principal Executive Officer)
|
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|
October 10, 2024
|
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| |
/s/ Sameer Parasnis
Sameer Parasnis
|
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Executive Vice President and Chief
Financial Officer of Falcon Aero Holdco LLC
(Principal Financial Officer)
|
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October 10, 2024
|
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| |
/s/ Bart P. Hartman III
Bart P. Harman III
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Vice President and Chief Accounting Officer
of Falcon Aero Holdco LLC
(Principal Accounting Officer)
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October 10, 2024
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Exhibit 4.2
W&T Offshore, Inc.,
as Issuer
and
Any Subsidiary Guarantors Party Hereto
and
___________,
as Trustee
SENIOR INDENTURE
Dated as of ,
202__
TABLE OF CONTENTS
| Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| |
Section 101. |
Definitions |
1 |
| |
Section 102. |
Compliance Certificates and Opinions |
6 |
| |
Section 103. |
Form of Documents Delivered to Trustee |
6 |
| |
Section 104. |
Acts of Holders; Record Dates |
7 |
| |
Section 105. |
Notices, Etc., to Trustee and Company |
8 |
| |
Section 106. |
Notice to Holders; Waiver |
9 |
| |
Section 107. |
Conflict with Trust Indenture Act |
9 |
| |
Section 108. |
Effect of Headings and Table of Contents |
9 |
| |
Section 109. |
Successors and Assigns |
9 |
| |
Section 110. |
Separability Clause |
9 |
| |
Section 111. |
Benefits of Indenture |
9 |
| |
Section 112. |
Governing Law |
9 |
| |
Section 113. |
Legal Holidays |
10 |
| |
Section 114. |
No Recourse Against Others |
10 |
| |
Section 115. |
Indenture May Be Executed in Counterparts |
10 |
| |
|
|
| Article Two SECURITY FORMS |
10 |
| |
Section 201. |
Forms Generally |
10 |
| |
Section 202. |
Form of Face of Security |
10 |
| |
Section 203. |
Form of Reverse of Security |
12 |
| |
Section 204. |
Form of Notation of Subsidiary Guarantee |
15 |
| |
Section 205. |
Form of Legend for Global Securities |
15 |
| |
Section 206. |
Form of Trustee’s Certificate of Authentication |
15 |
| |
Section 207. |
Form of Conversion Notice |
16 |
| |
|
|
| Article Three THE SECURITIES |
16 |
| |
Section 301. |
Amount Unlimited; Issuable in Series |
16 |
| |
Section 302. |
Denominations |
19 |
| |
Section 303. |
Execution, Authentication, Delivery and Dating |
19 |
| |
Section 304. |
Temporary Securities |
20 |
| |
Section 305. |
Registration, Registration of Transfer and Exchange |
20 |
| |
Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
22 |
| |
Section 307. |
Payment of Interest; Interest Rights Preserved |
22 |
| |
Section 308. |
Persons Deemed Owners |
23 |
| |
Section 309. |
Cancellation |
23 |
| |
Section 310. |
Computation of Interest |
23 |
| |
|
|
| Article Four SATISFACTION AND DISCHARGE |
24 |
| |
Section 401. |
Satisfaction and Discharge of Indenture |
24 |
| |
Section 402. |
Application of Trust Money |
24 |
| |
|
|
| Article Five REMEDIES |
25 |
| |
Section 501. |
Events of Default |
25 |
| |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
26 |
| |
Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
27 |
| |
Section 504. |
Trustee May File Proofs of Claim |
27 |
| |
Section 505. |
Trustee May Enforce Claims Without Possession of Securities |
28 |
| |
Section 506. |
Application of Money Collected |
28 |
| |
Section 507. |
Limitation on Suits |
28 |
| |
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
29 |
| |
Section 509. |
Restoration of Rights and Remedies |
29 |
| |
Section 510. |
Rights and Remedies Cumulative |
29 |
| |
Section 511. |
Delay or Omission Not Waiver |
29 |
| |
Section 512. |
Control by Holders |
30 |
| |
Section 513. |
Waiver of Past Defaults |
30 |
| |
Section 514. |
Undertaking for Costs |
30 |
| |
Section 515. |
Waiver of Usury, Stay or Extension Laws |
30 |
| Article Six THE TRUSTEE |
31 |
| |
Section 601. |
Certain Duties and Responsibilities |
31 |
| |
Section 602. |
Notice of Defaults |
31 |
| |
Section 603. |
Certain Rights of Trustee |
31 |
| |
Section 604. |
Not Responsible for Recitals or Issuance of Securities |
32 |
| |
Section 605. |
May Hold Securities |
32 |
| |
Section 606. |
Money Held in Trust |
32 |
| |
Section 607. |
Compensation and Reimbursement |
32 |
| |
Section 608. |
Conflicting Interests |
32 |
| |
Section 609. |
Corporate Trustee Required; Eligibility |
33 |
| |
Section 610. |
Resignation and Removal; Appointment of Successor |
33 |
| |
Section 611. |
Acceptance of Appointment by Successor |
34 |
| |
Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
34 |
| |
Section 613. |
Preferential Collection of Claims Against Company |
35 |
| |
Section 614. |
Appointment of Authenticating Agent |
35 |
| |
|
|
| Article Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
36 |
| |
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
36 |
| |
Section 702. |
Preservation of Information; Communications to Holders |
36 |
| |
Section 703. |
Reports by Trustee |
37 |
| |
Section 704. |
Reports by Company |
37 |
| |
|
|
| Article Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
37 |
| |
Section 801. |
Company May Consolidate, Etc., Only on Certain Terms |
37 |
| |
Section 802. |
Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms |
38 |
| |
Section 803. |
Successor Substituted |
38 |
| |
|
|
| Article Nine SUPPLEMENTAL INDENTURES |
39 |
| |
Section 901. |
Supplemental Indentures Without Consent of Holders |
39 |
| |
Section 902. |
Supplemental Indentures With Consent of Holders |
40 |
| |
Section 903. |
Execution of Supplemental Indentures |
40 |
| |
Section 904. |
Effect of Supplemental Indentures |
41 |
| |
Section 905. |
Conformity With Trust Indenture Act |
41 |
| |
Section 906. |
Reference in Securities to Supplemental Indentures |
41 |
| |
|
|
| Article Ten COVENANTS |
41 |
| |
Section 1001. |
Payment of Principal, Premium and Interest |
41 |
| |
Section 1002. |
Maintenance of Office or Agency |
41 |
| |
Section 1003. |
Money for Securities Payments to be Held in Trust |
42 |
| |
Section 1004. |
Statement by Officers as to Default |
42 |
| |
Section 1005. |
Existence |
43 |
| |
Section 1006. |
Maintenance of Properties |
43 |
| |
Section 1007. |
Payment of Taxes and Other Claims |
43 |
| |
Section 1008. |
Maintenance of Insurance |
43 |
| |
Section 1009. |
Waiver of Certain Covenants |
43 |
| |
|
|
| Article Eleven REDEMPTION OF SECURITIES |
44 |
| |
Section 1101. |
Applicability of Article |
44 |
| |
Section 1102. |
Election to Redeem; Notice to Trustee |
44 |
| |
Section 1103. |
Selection by Trustee of Securities to be Redeemed |
44 |
| |
Section 1104. |
Notice of Redemption |
45 |
| |
Section 1105. |
Deposit of Redemption Price |
45 |
| |
Section 1106. |
Securities Payable on Redemption Date |
45 |
| |
Section 1107. |
Securities Redeemed in Part |
46 |
| Article Twelve [INTENTIONALLY OMITTED] |
46 |
| |
|
| Article Thirteen SUBSIDIARY GUARANTEES |
46 |
| |
Section 1301. |
Applicability of Article |
46 |
| |
Section 1302. |
Subsidiary Guarantees |
46 |
| |
Section 1303. |
Execution and Delivery of Notations of Subsidiary Guarantees |
47 |
| |
Section 1304. |
Release of Subsidiary Guarantors |
48 |
| |
Section 1305. |
Additional Subsidiary Guarantors |
48 |
| |
Section 1306. |
Limitation on Liability |
48 |
| |
|
|
| Article Fourteen [INTENTIONALLY OMITTED] |
48 |
| |
|
| Article Fifteen DEFEASANCE AND COVENANT DEFEASANCE |
48 |
| |
Section 1501. |
Company’s Option to Effect Defeasance or Covenant Defeasance |
48 |
| |
Section 1502. |
Defeasance and Discharge |
49 |
| |
Section 1503. |
Covenant Defeasance |
49 |
| |
Section 1504. |
Conditions to Defeasance or Covenant Defeasance |
49 |
| |
Section 1505. |
Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions |
51 |
| |
Section 1506. |
Reinstatement |
51 |
| |
|
|
| Article Sixteen SINKING FUNDS |
51 |
| |
Section 1601. |
Applicability of Article |
51 |
| |
Section 1602. |
Satisfaction of Sinking Fund Payments with Securities |
52 |
| |
Section 1603. |
Redemption of Securities for Sinking Fund |
52 |
W&T OFFSHORE, 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 |
| 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.
INDENTURE, dated as of ,
202 , among W&T Offshore, Inc., a corporation duly organized and existing under the laws
of the State of Texas (herein called the “Company”), having its principal office at 5718 Westheimer Road, Suite 700,
Houston, Texas 77057, each of the Subsidiary Guarantors (as hereinafter defined) party hereto and ,
a banking corporation duly organized and existing under the laws of the State of New York, 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 join 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 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.
“Common Stock” means the common stock,
no 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 at which at any particular time its corporate trust business shall be administered, such office being
located on the date hereof at .
“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.
“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(4).
“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 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 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 pledgee’s right so to act with respect to such Securities and
that the pledgee is not 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.
“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.
“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 Company’s consolidated total assets at the end of the
most recent fiscal quarter for which financial information is available or 10% or more of the Company’s 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.
“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 of 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 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 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 Depositary’s 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 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 Company’s 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:
| (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 Company’s
principal office specified in the first paragraph of this instrument, Attention: Executive Vice President and 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 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.
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.
No director, officer, employee, incorporator, stockholder,
member, partner or trustee of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Securities, this Indenture or any Subsidiary Guarantees 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.
Section 115. Indenture
May Be Executed in Counterparts.
The parties may sign any number of copies of this
Indenture, and each party hereto may sign any number of separate copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
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.]
W&T Offshore, Inc.
| No. ____________ | $___________ |
W&T Offshore, 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 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.
Dated:
Attest:
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 ,
202 (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 ,
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,
| Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
| |
|
|
|
|
|
|
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, 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.]
| Year |
|
Redemption Price for
Redemption Through
Operation of the Sinking
Fund |
|
Redemption Price for
Redemption Otherwise
than Through Operation
of the Sinking Fund |
| |
|
|
|
|
[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 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 Company’s 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 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.
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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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
Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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: W&T Offshore, 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 W&T Offshore, 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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| Principal amount to be converted: (if less than all) |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature acceptable to the Trustee). |
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 and premium, if any, of any Securities of the series is payable or the method used to determine
those dates; |
| (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 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 $2,000 and any integral multiples of $1,000 in excess 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 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 $2,000 and any integral multiples of $1,000 in excess 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 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 Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 301
and of the 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 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 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 to appoint a successor Depositary within 120 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 notations of Subsidiary Guarantees 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 notations of Subsidiary Guarantees 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.
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). |
| (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.
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
| (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.
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 accelerated
by the holders thereof because of a default and the total amount of such Debt unpaid or accelerated exceeds $50.0 million, or its foreign
currency equivalent at the time; or |
| (7) | any judgment or decree for the payment of money in excess of $50.0 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 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 Guarantor’s
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
| (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.
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; |
| (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 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.
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.
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 Trustee’s 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 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 agrees
| (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.
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 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 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.
Section 613. Preferential
Collection of Claims Against Company.
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 Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a 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 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 Trustee’s 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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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.
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.
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 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 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
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 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 |
| (4) | 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 |
| (5) | to secure the Securities; or |
| (6) | to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or |
| (7) | 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 |
| (8) | to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein; or |
| (9) | 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 |
| (10) | 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 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). |
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.
After a supplemental indenture under this Section 902
requiring the consent of the Holders of any series of Securities is approved, the Company shall mail to Holders of that series of 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 Trustee’s 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 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 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 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the
Company 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. |
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 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 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:
| (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 Company’s 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.
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.
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 Company’s 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.
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 Person’s 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. Company’s
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 Company’s 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 Company’s and each
Subsidiary Guarantor’s 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 Company’s 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 1005 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.
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 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 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.
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 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 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.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
| |
ISSUER: |
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|
| |
W&T Offshore, Inc. |
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|
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By: |
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Name: |
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Title: |
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|
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SUBSIDIARY GUARANTORS: |
| |
|
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[Insert Subsidiary Guarantors] |
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|
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By: |
|
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|
Name: |
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Title: |
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|
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TRUSTEE: |
| |
|
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|
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, |
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As Trustee |
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By: |
|
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Name: |
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Title: |
SCHEDULE I
SUBSIDIARY GUARANTORS
| Subsidiary |
|
State of Organization |
| [Insert Subsidiary Guarantors] |
|
|
Exhibit 4.4
W&T Offshore, Inc.,
as Issuer
and
Any Subsidiary Guarantors Party Hereto
and
,
as Trustee
SUBORDINATED INDENTURE
Dated as of ,
202
TABLE OF CONTENTS
| Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| |
Section 101. |
Definitions |
1 |
| |
Section 102. |
Compliance Certificates and Opinions |
6 |
| |
Section 103. |
Form of Documents Delivered to Trustee |
7 |
| |
Section 104. |
Acts of Holders; Record Dates |
7 |
| |
Section 105. |
Notices, Etc., to Trustee and Company |
9 |
| |
Section 106. |
Notice to Holders; Waiver |
9 |
| |
Section 107. |
Conflict with Trust Indenture Act |
9 |
| |
Section 108. |
Effect of Headings and Table of Contents |
9 |
| |
Section 109. |
Successors and Assigns |
9 |
| |
Section 110. |
Separability Clause |
10 |
| |
Section 111. |
Benefits of Indenture |
10 |
| |
Section 112. |
Governing Law |
10 |
| |
Section 113. |
Legal Holidays |
10 |
| |
Section 114. |
No Recourse Against Others |
10 |
| |
Section 115. |
Indenture May Be Executed in Counterparts |
10 |
| |
|
|
|
| Article Two
SECURITY FORMS |
10 |
| |
Section 201. |
Forms Generally |
10 |
| |
Section 202. |
Form of Face of Security |
11 |
| |
Section 203. |
Form of Reverse of Security |
12 |
| |
Section 204. |
Form of Notation of Subsidiary Guarantee |
15 |
| |
Section 205. |
Form of Legend for Global Securities |
15 |
| |
Section 206. |
Form of Trustee’s Certificate of Authentication |
15 |
| |
Section 207. |
Form of Conversion Notice |
16 |
| |
|
|
|
| Article Three
THE SECURITIES |
17 |
| |
Section 301. |
Amount Unlimited; Issuable in Series |
17 |
| |
Section 302. |
Denominations |
19 |
| |
Section 303. |
Execution, Authentication, Delivery and Dating |
19 |
| |
Section 304. |
Temporary Securities |
20 |
| |
Section 305. |
Registration, Registration of Transfer and Exchange |
21 |
| |
Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
22 |
| |
Section 307. |
Payment of Interest; Interest Rights Preserved |
22 |
| |
Section 308. |
Persons Deemed Owners |
23 |
| |
Section 309. |
Cancellation |
23 |
| |
Section 310. |
Computation of Interest |
24 |
| |
|
|
|
| Article Four
SATISFACTION AND DISCHARGE |
24 |
| |
Section 401. |
Satisfaction and Discharge of Indenture |
24 |
| |
Section 402. |
Application of Trust Money |
25 |
| |
|
|
|
| Article Five
REMEDIES |
25 |
| |
Section 501. |
Events of Default |
25 |
| |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
26 |
| |
Section 503. |
Collection of Indebtedness and Suits for Enforcement
by Trustee |
27 |
| |
Section 504. |
Trustee May File Proofs of Claim |
28 |
| |
Section 505. |
Trustee May Enforce Claims Without Possession
of Securities |
28 |
| |
Section 506. |
Application of Money Collected |
28 |
| |
Section 507. |
Limitation on Suits |
29 |
| |
Section 508. |
Unconditional Right of Holders to Receive Principal,
Premium and Interest |
29 |
| |
Section 509. |
Restoration of Rights and Remedies |
29 |
| |
Section 510. |
Rights and Remedies Cumulative |
29 |
| |
Section 511. |
Delay or Omission Not Waiver |
30 |
| |
Section 512. |
Control by Holders |
30 |
| |
Section 513. |
Waiver of Past Defaults |
30 |
| |
Section 514. |
Undertaking for Costs |
30 |
| |
Section 515. |
Waiver of Usury, Stay or Extension Laws |
30 |
| |
|
|
|
| Article Six
THE TRUSTEE |
31 |
| |
Section 601. |
Certain Duties and Responsibilities |
31 |
| |
Section 602. |
Notice of Defaults |
31 |
| |
Section 603. |
Certain Rights of Trustee |
31 |
| |
Section 604. |
Not Responsible for Recitals or Issuance of Securities |
32 |
| |
Section 605. |
May Hold Securities |
32 |
| |
Section 606. |
Money Held in Trust |
32 |
| |
Section 607. |
Compensation and Reimbursement |
32 |
| |
Section 608. |
Conflicting Interests |
33 |
| |
Section 609. |
Corporate Trustee Required; Eligibility |
33 |
| |
Section 610. |
Resignation and Removal; Appointment of Successor |
33 |
| |
Section 611. |
Acceptance of Appointment by Successor |
34 |
| |
Section 612. |
Merger, Conversion, Consolidation or Succession to
Business |
35 |
| |
Section 613. |
Preferential Collection of Claims Against Company |
35 |
| |
Section 614. |
Appointment of Authenticating Agent |
35 |
| |
|
|
|
| Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY |
36 |
| |
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
36 |
| |
Section 702. |
Preservation of Information; Communications to Holders |
36 |
| |
Section 703. |
Reports by Trustee |
37 |
| |
Section 704. |
Reports by Company |
37 |
| |
|
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| Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
37 |
| |
Section 801. |
Company May Consolidate, Etc., Only on Certain
Terms |
37 |
| |
Section 802. |
Subsidiary Guarantors May Consolidate, Etc., Only
on Certain Terms |
38 |
| |
Section 803. |
Successor Substituted |
38 |
| |
|
|
|
| Article Nine
SUPPLEMENTAL INDENTURES |
39 |
| |
Section 901. |
Supplemental Indentures Without Consent of Holders |
39 |
| |
Section 902. |
Supplemental Indentures With Consent of Holders |
40 |
| |
Section 903. |
Execution of Supplemental Indentures |
41 |
| |
Section 904. |
Effect of Supplemental Indentures |
41 |
| |
Section 905. |
Conformity With Trust Indenture Act |
41 |
| |
Section 906. |
Reference in Securities to Supplemental Indentures |
41 |
| |
|
|
|
| Article Ten
COVENANTS |
41 |
| |
Section 1001. |
Payment of Principal, Premium and Interest |
41 |
| |
Section 1002. |
Maintenance of Office or Agency |
41 |
| |
Section 1003. |
Money for Securities Payments to be Held in Trust |
42 |
| |
Section 1004. |
Statement by Officers as to Default |
42 |
| |
Section 1005. |
Existence |
43 |
| |
Section 1006. |
Maintenance of Properties |
43 |
| |
Section 1007. |
Payment of Taxes and Other Claims |
43 |
| |
Section 1008. |
Maintenance of Insurance |
43 |
| |
Section 1009. |
Waiver of Certain Covenants |
44 |
| |
|
|
|
| Article Eleven
REDEMPTION OF SECURITIES |
44 |
| |
Section 1101. |
Applicability of Article |
44 |
| |
Section 1102. |
Election to Redeem; Notice to Trustee |
44 |
| |
Section 1103. |
Selection by Trustee of Securities to be Redeemed |
44 |
| |
Section 1104. |
Notice of Redemption |
45 |
| |
Section 1105. |
Deposit of Redemption Price |
46 |
| |
Section 1106. |
Securities Payable on Redemption Date |
46 |
| |
Section 1107. |
Securities Redeemed in Part |
46 |
| |
|
|
|
| Article Twelve
SUBORDINATION OF SECURITIES |
46 |
| |
Section 1201. |
Applicability of Article |
46 |
| |
Section 1202. |
Securities Subordinate to Senior Debt |
46 |
| |
Section 1203. |
Payment Over of Proceeds Upon Dissolution, Etc. |
47 |
| |
Section 1204. |
No Payment When Senior Debt of the Company in Default |
47 |
| |
Section 1205. |
Payment Permitted If No Default |
48 |
| |
Section 1206. |
Subrogation to Rights of Holders of Senior Debt of
the Company |
48 |
| |
Section 1207. |
Provisions Solely to Define Relative Rights |
49 |
| |
Section 1208. |
Trustee to Effectuate Subordination |
49 |
| |
Section 1209. |
No Waiver of Subordination Provisions |
49 |
| |
Section 1210. |
Notice to Trustee |
49 |
| |
Section 1211. |
Reliance on Judicial Order or Certificate of Liquidating
Agent |
50 |
| |
Section 1212. |
Trustee Not Fiduciary for Holders of Senior Debt of
the Company |
50 |
| |
Section 1213. |
Rights of Trustee as Holder of Senior Debt of the Company;
Preservation of Trustee’s Rights |
50 |
| |
Section 1214. |
Article Applicable to Paying Agents |
50 |
| |
Section 1215. |
Defeasance of this Article Twelve |
51 |
| |
|
|
|
| Article Thirteen
SUBSIDIARY GUARANTEES |
51 |
| |
Section 1301. |
Applicability of Article |
51 |
| |
Section 1302. |
Subsidiary Guarantees |
51 |
| |
Section 1303. |
Execution and Delivery of Notations of Subsidiary Guarantees |
52 |
| |
Section 1304. |
Release of Subsidiary Guarantors |
52 |
| |
Section 1305. |
Additional Subsidiary Guarantors |
53 |
| |
Section 1306. |
Limitation on Liability |
53 |
| |
|
|
|
| Article Fourteen
SUBORDINATION OF SUBSIDIARY GUARANTEES |
53 |
| |
Section 1401. |
Applicability of Article |
53 |
| |
Section 1402. |
Subsidiary Guarantees Subordinate to Senior Debt of
Subsidiary Guarantors |
53 |
| |
Section 1403. |
Payment Over of Proceeds Upon Dissolution, Etc. |
54 |
| |
Section 1404. |
No Payment When Senior Debt of such Subsidiary Guarantor
in Default |
54 |
| |
Section 1405. |
Payment Permitted If No Default |
55 |
| |
Section 1406. |
Subrogation to Rights of Holders of Senior Debt of
such Subsidiary Guarantor |
55 |
| |
Section 1407. |
Provisions Solely to Define Relative Rights |
55 |
| |
Section 1408. |
Trustee to Effectuate Subordination |
56 |
| |
Section 1409. |
No Waiver of Subordination Provisions |
56 |
| |
Section 1410. |
Notice to Trustee |
56 |
| |
Section 1411. |
Reliance on Judicial Order or Certificate of Liquidating
Agent |
57 |
| |
Section 1412. |
Trustee Not Fiduciary for Holders of Senior Debt of
such Subsidiary Guarantor |
57 |
| |
Section 1413. |
Rights of Trustee as Holder of Senior Debt of such
Subsidiary Guarantor; Preservation of Trustee’s Rights |
57 |
| |
Section 1414. |
Article Applicable to Paying Agents |
57 |
| |
Section 1415. |
Defeasance of this Article Fourteen |
57 |
| |
|
|
|
| Article Fifteen
DEFEASANCE AND COVENANT DEFEASANCE |
58 |
| |
Section 1501. |
Company’s Option to Effect Defeasance or Covenant
Defeasance |
58 |
| |
Section 1502. |
Defeasance and Discharge |
58 |
| |
Section 1503. |
Covenant Defeasance |
58 |
| |
Section 1504. |
Conditions to Defeasance or Covenant Defeasance |
59 |
| |
Section 1505. |
Deposited Money and U.S. Government Obligations to
be Held in Trust; Miscellaneous Provisions |
60 |
| |
Section 1506. |
Reinstatement |
61 |
| Article Sixteen
SINKING FUNDS |
61 |
| |
Section 1601. |
Applicability of Article |
61 |
| |
Section 1602. |
Satisfaction of Sinking Fund Payments with Securities |
61 |
| |
Section 1603. |
Redemption of Securities for Sinking Fund |
61 |
W&T OFFSHORE, 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 |
| 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.
INDENTURE, dated as of ,
202 , among W&T Offshore, Inc., a corporation duly organized and existing
under the laws of the State of Texas (herein called the “Company”), having its principal office at 5718 Westheimer Road,
Suite 700, Houston, Texas 77057, each of the Subsidiary Guarantors (as hereinafter defined) party hereto and ,
a banking corporation duly organized and existing under the laws of the State of New York, 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 join 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 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; 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.
“Common Stock” means the common stock,
no 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 at which at any particular time its corporate trust business shall be administered, such office being
located on the date hereof at .
“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.
“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(4).
“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 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 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 pledgee’s right so to act with
respect to such Securities and that the pledgee is not 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.
“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.
“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 Company’s consolidated total assets at the end of
the most recent fiscal quarter for which financial information is available or 10% or more of the Company’s 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.
“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 of 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 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 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 Depositary’s 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 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 Company’s 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:
| (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 Company’s principal office specified in the first paragraph of this instrument,
Attention: Executive Vice President and 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 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.
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.
No director, officer, employee, incorporator,
stockholder, member, partner or trustee of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations
of the Company or any Subsidiary Guarantor under the Securities, this Indenture or any Subsidiary Guarantees 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.
Section 115. Indenture
May Be Executed in Counterparts.
The parties may sign any number of copies of this
Indenture, and each party hereto may sign any number of separate copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile
or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
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.]
W&T Offshore, Inc.
| No. _______________ | $______________ |
W&T Offshore, 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 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.
| Dated: | |
| | |
| | W&T Offshore, Inc. |
| | |
| | By |
|
| | |
| Attest: | |
| | |
| | |
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 ,
202 (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 ,
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,
| Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
| |
|
|
|
|
|
|
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,
Year |
|
Redemption
Price for
Redemption Through
Operation of the
Sinking Fund |
|
Redemption
Price for
Redemption Otherwise
than Through
Operation of the
Sinking Fund |
| |
|
|
|
|
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 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 Company’s 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 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.
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.
| | [Insert Names of Subsidiary Guarantors] |
| | |
| | By: |
|
| | Title: |
|
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
Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
| , |
| | |
As Trustee |
| | |
| | By |
|
| | |
Authorized Officer |
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: W&T Offshore, 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 W&T Offshore, 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.
| | |
| | | Social Security or other |
| | | Taxpayer Identification Number |
| | | |
| | | |
| (Name) | | |
| | | |
| | | |
| (Please print name and address) | | |
| | | |
| | | Principal amount to be converted:
(if less than all) |
| | | |
| | | $ |
|
| | | |
| Signature Guarantee* | | |
| | | |
| | | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other
signature acceptable to the Trustee). |
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 and premium, if any, of any
Securities of the series is payable or the method used to determine those dates; |
| (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 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 $2,000 and any integral multiples
of $1,000 in excess 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; |
| (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 be subordinated
in right of payment to Senior Debt or the Company as provided in Article Twelve and 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 $2,000 and any integral multiples of $1,000 in excess 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 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 Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 301
and of the 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 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 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 to appoint a successor Depositary
within 120 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 notations of Subsidiary Guarantees 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 notations of Subsidiary Guarantees 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.
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). |
| (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.
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
| (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.
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 accelerated by the holders thereof because of a default and the total amount of such
Debt unpaid or accelerated exceeds $50.0 million, or its foreign currency equivalent at the
time; or |
| (7) | any judgment or decree for the payment of money in excess of $50.0
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 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 Guarantor’s
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
| (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.
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; |
| (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 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.
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.
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 Trustee’s 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 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 agrees
| (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.
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 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 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.
Section 613. Preferential
Collection of Claims Against Company.
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 Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a 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 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 Trustee’s
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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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.
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.
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 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 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 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 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 |
| (4) | 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 |
| (5) | to secure the Securities; or |
| (6) | to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or |
| (7) | 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 |
| (8) | to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein; or |
| (9) | 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 |
| (10) | to add new Subsidiary Guarantors; or |
| (11) | to make any change to the provisions of Article Twelve or Article 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 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). |
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.
After a supplemental indenture under this Section 902
requiring the consent of the Holders of any series of Securities is approved, the Company shall mail to Holders of that series of 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 Trustee’s 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 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 Article 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.
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 120 days after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate, stating whether or not to the best knowledge of the signers
thereof (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 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.
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.
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 in connection with a satisfaction and discharge pursuant to Article Four.
All notices of redemption shall state:
| (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 Company’s 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.
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.
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 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.
“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 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 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.
Section 1213. Rights
of Trustee as Holder of Senior Debt of the Company; Preservation of Trustee’s Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with respect to any Senior 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 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 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 Company’s 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.
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 Person’s 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
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 Guarantor’s Subsidiary Guarantee in any such Guarantor Proceeding.
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 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
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, 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, 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.
Section 1413. Rights
of Trustee as Holder of Senior Debt of such Subsidiary Guarantor; Preservation of Trustee’s Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with respect to any Senior 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.
Article Fifteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Company’s
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 Company’s 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 Company’s and
each Subsidiary Guarantor’s 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 Company’s 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 1005 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(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 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. |
| (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 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 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 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 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.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
| ISSUER: |
| | |
| | W&T Offshore, Inc. |
| | |
| | By: | |
| | | Name: |
| | | Title: |
| | |
| | SUBSIDIARY GUARANTORS: |
| | |
| | [Insert Subsidiary Guarantors] |
| | |
| | By: | |
| | | Name: |
| | | Title: |
| | |
| | TRUSTEE: |
| | |
|
, |
| |
|
As Trustee |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Title: |
SCHEDULE I
SUBSIDIARY GUARANTORS
Subsidiary |
|
State of Organization |
| [Insert Subsidiary Guarantors] |
|
|
Exhibit 5.1
|
|
609 Main Street
Houston, TX 77002
United States
+1 713 836 3600
www.kirkland.com
|
Facsimile:
+1 713 836 3600 |
October 10, 2024
W&T Offshore, Inc.
5718 Westheimer Road, Suite 700
Houston, Texas 77057
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are issuing this opinion in our capacity as special counsel to
W&T Offshore, Inc., a Texas corporation (the “Company”) in connection with the preparation of the Registration
Statement on Form S-3 (such Registration Statement, as amended or supplemented, is hereinafter referred to as the “Registration
Statement”) filed with the Securities and Exchange Commission (the “Commission”) on or about October 10,
2024 under the Securities Act of 1933, as amended (the “Securities Act”), by the Company. The Registration Statement
relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under
the Securities Act, (a) by the Company of an unspecified amount of the following securities: (i) senior debt securities (the
“Senior Debt Securities”), (ii) subordinated debt securities (the “Subordinated Debt Securities”,
and together with the Senior Debt Securities the “Debt Securities”), which may be fully and unconditionally guaranteed
(the “Guarantees”) by the Company’s subsidiaries listed as co-registrants in the Registration Statement (the
“Subsidiary Guarantors”), (iii) preferred stock of the Company (the “Preferred Stock”), (iv) Preferred
Stock represented by depositary shares (the “Depositary Shares”), (v) warrants to purchase the Preferred Stock
(the “Preferred Warrants”), (vi) shares of common stock, par value $0.00001 per share, of the Company (the “Common
Stock”) and (vii) warrants to purchase the Common Stock of the Company (the “Common Warrants”); and
(b) by the selling shareholder (as defined in the Registration Statement), of up to 50,605,082 shares of Common Stock (the “Resale
Common Stock”), including up to 2,277,063 shares of such Resale Common Stock that is issuable to the selling shareholder upon satisfaction of vesting requirements in accordance with the terms of grants of certain outstanding restricted stock units
held by the selling shareholder described in the Registration Statement (the “Vesting Common Stock”). The Common
Warrants and Preferred Warrants are collectively referred to as the “Warrants” and the Warrants, together with the
Debt Securities, the Guarantees, the Preferred Stock, the Depositary Shares and the Common Stock, are collectively referred to as the
“Securities”, which the Company may offer from time to time in one or more classes or series and in amounts on a delayed
or continuous basis (the “Offerings”). Any Debt Securities and Preferred Stock may be convertible into or exchangeable
for Common Stock or other Securities.
Austin Bay Area Beijing
Boston Brussels Chicago Hong Kong Houston London Los Angeles Miami Munich New York Paris Riyadh Salt Lake City
Shanghai Washington, D.C.
W&T Offshore, Inc.
October 10,
2024
Page 2
You have advised us that: (i) the Senior Debt Securities will
be issued under the senior indenture filed as an exhibit to the Registration Statement (as amended or supplemented from time to time,
the “Senior Indenture”) between the Company, if applicable, the Subsidiary Guarantors and a financial institution
to be identified therein as the trustee (the “Trustee”); (ii) the Subordinated Debt Securities will be issued
under the subordinated indenture filed as an exhibit to the Registration Statement (as amended or supplemented from time to time, the
“Subordinated Indenture”, and together with the Senior Indenture the “Indentures”) between the
Company, if applicable, the Subsidiary Guarantors and the Trustee; (iii) the Common Warrants will be issued under one or more common
warrant agreements (each, a “Common Warrant Agreement”); (iv) the Preferred Warrants will be issued under one
or more preferred warrant agreements (each, a “Preferred Warrant Agreement” and, together with any Common Warrant
Agreements, the “Warrant Agreements”) each to be between the Company and a financial institution identified therein
as warrant agent (each, a “Warrant Agent”); and (v) the Depositary Shares will be issued under one or more deposit
agreements (each, a “Deposit Agreement”), each to be between the Company and a financial institution identified therein
as the depositary (the “Depositary”). The Indentures, each Warrant Agreement and each Deposit Agreement shall be referred
to herein as a “Governing Document”). The Trustee, each Depositary and each Warrant Agent shall be referred to herein
as a “Governing Document Counterparty”).
For purposes of this letter, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary
for the purposes of this opinion, including: (i) the corporate and organizational documents of the Company, (ii) minutes and
records of the corporate proceedings of the Company and (iii) the Registration Statement and the exhibits thereto.
For purposes of this letter, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity
of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness
of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing
on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. We have not independently established or verified any facts relevant to the opinions expressed herein,
but have relied upon statements and representations of the officers and other representatives of the Company.
W&T Offshore, Inc.
October 10,
2024
Page 3
We have also assumed that:
| (i) | the Registration Statement will have become effective and comply with
all applicable laws; |
| (ii) | the Registration Statement will be effective and will comply with
all applicable laws at the time the Securities are offered or issued as contemplated by the
Registration Statement; |
| (iii) | a prospectus supplement or term sheet (“Prospectus Supplement”)
will have been prepared and filed with the Commission describing the Securities offered thereby
and will comply with all applicable laws; |
| (iv) | all Securities will be issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the Registration Statement
and the applicable Prospectus Supplement; |
| (v) | the Securities will be issued and sold in the form and containing
the terms set forth in the Registration Statement, the applicable Prospectus Supplement and
the relevant Governing Document; |
| (vi) | the Securities offered, as well as the terms of the applicable Governing
Document, as executed and delivered, do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon the Company; |
| (vii) | the Company will have obtained any legally required consents, approvals,
authorizations and other orders of the Commission and any other regulatory authorities necessary
to issue and sell the Securities being offered and to execute and deliver the applicable
Governing Document; |
| (viii) | the Securities offered as well as the terms of the applicable Governing
Document, as executed and delivered, comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company; |
| (ix) | a definitive distribution, purchase, underwriting, sales agent or
similar agreement (each, a “Purchase Agreement”) with respect to any Securities
offered or issued will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto; |
W&T Offshore, Inc.
October 10,
2024
Page 4
| (x) | any applicable indenture, indenture trustee, and if applicable, the
related Guarantees will have been qualified under the Trust Indenture Act of 1939, as amended;
and |
| (xi) | any Securities issuable upon conversion, exchange, or exercise of
any Security being offered or issued will be duly authorized, created, and, if appropriate,
reserved for issuance upon such conversion, exchange, or exercise. |
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, we are of the opinion that:
1. When
the specific terms of any offering or offerings of Common Stock have been duly authorized and established by the Board of Directors
of the Company or a committee thereof and in accordance with provisions of any applicable Purchase Agreement so as not to violate
any applicable law or agreement or instrument then binding on the Company, and such shares of Common Stock have been issued, sold
and delivered against payment therefor in accordance with such authorization, the applicable Purchase Agreement and applicable law
(which shall be in an amount at least equal to the par value of the shares being issued and sold) or upon exchange in accordance
with the terms of any other Security that has been duly authorized, issued, paid for and delivered, such shares will be validly
issued, fully paid and non-assessable.
2. Upon
designation of the preferences and relative, participating, optional and other special rights, and qualifications, limitations or
restrictions, of any series of Preferred Stock by the Board of Directors of the Company or a committee thereof and proper filing
with the Secretary of State of the State of Texas of a certificate of designations relating to such series of Preferred Stock, all
necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such series of
Preferred Stock proposed to be sold by the Company, and such shares of Preferred Stock have been issued, sold and delivered against
payment therefor in accordance with such authorization and the applicable Purchase Agreement and applicable law (which shall be in
an amount at least equal to the par value of the shares being issued and sold) or upon exchange in accordance with the terms of any
other Security that has been duly authorized, issued, paid for and delivered, such shares will be validly issued, fully paid and
non-assessable.
3. When,
as and if (a) the terms of any particular series of Debt Securities have been duly authorized and duly established in accordance
with the Indentures and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form,
terms, execution and delivery of such Debt Securities (and any required amendment or supplement to the Indentures), and (c) the
applicable Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers against payment in accordance
with such authorization, the Indentures, the applicable Purchase Agreement and applicable law and authenticated by the Trustee, such
Debt Securities (including any Debt Securities duly executed and delivered upon the exchange or conversion of Debt Securities that are
exchangeable or convertible into another series of Debt Securities) will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
W&T Offshore, Inc.
October 10,
2024
Page 5
4. The
Guarantees will, when issued, constitute legal, valid and binding obligations of the Subsidiary Guarantors, enforceable against the Subsidiary
Guarantors in accordance with their respective terms and will have been duly authorized by all limited liability company actions on the
part of each of the Subsidiary Guarantors and constitute legal, valid and binding obligations of the Subsidiary Guarantors in accordance
with their terms, except to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or conveyance or other similar laws relating to or affecting creditors’ rights generally, (b) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) or (c) any implied
covenants of good faith and fair dealing.
5. When,
as and if (a) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery
of the Warrant Agreement (including a form of certificate evidencing the Warrants), (b) Warrants with such terms have been duly
executed, attested, issued and delivered by duly authorized officers of the Company against payment in accordance with such authorization,
the applicable Purchase Agreement and applicable law, and (c) the Securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate or organizational action.
6. When,
as and if (a) any Preferred Stock in the form of Depositary Shares has been duly authorized and duly established in accordance with
the applicable Deposit Agreements and applicable law, (b) the appropriate corporate action has been taken by the Company to authorize
the form, terms, execution and delivery of such Depositary Shares (and any required amendment or supplement to the applicable Deposit
Agreement), (c) the Preferred Stock represented by the Depositary Shares has been duly delivered to the Depositary under the applicable
Deposit Agreement, and (d) the depositary receipts evidencing the Depositary Shares have been duly executed, attested, issued and
delivered by duly authorized officers, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights
specified in the Deposit Agreement.
W&T Offshore, Inc.
October 10, 2024
Page 6
7. The
Resale Common Stock (other than the Vesting Common Stock) proposed to be sold by the selling shareholder is legally issued, fully paid
and nonassessable. If and when the vesting events applicable to the outstanding restricted stock units held by the selling
shareholder occur in accordance with the terms of their grant and automatically convert to Vesting Common Stock, such Vesting Common
Stock will be validly issued, fully paid and nonassessable shares of Common Stock.
Our opinions expressed above are subject to the qualifications that
we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors’ rights generally,
(ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), (iii) other
commonly recognized statutory and judicial constraints as to enforceability, including statutes of limitations, (iv) public policy
considerations which may limit the rights of parties to obtain certain remedies, and (v) any laws except the laws of the State of
Texas, including the applicable provisions of the Texas Business Organizations Code, and New York and the General Corporation Law of
the State of Delaware, including the applicable provisions of the Delaware constitution and reported judicial decisions interpreting
these laws.
We express no opinion with respect to the enforceability of (i) consents
to, or restrictions upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to stay, extension
or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iv) waivers of broadly or vaguely stated
rights; (v) provisions for exclusivity, election or accumulation of rights or remedies; (vi) provisions authorizing or validating
conclusive or discretionary determinations; (vii) grants of setoff rights; (viii) provisions for the payment of attorneys’
fees where such payment is contrary to law or public policy; (ix) proxies, powers and trusts; (x) restrictions upon non-written
modifications and waivers; (xi) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right
or property; (xii) any provision to the extent it requires any party to indemnify any other person against loss in obtaining the
currency due following a court judgment in another currency; and (xiii) provisions for liquidated damages, default interest, late
charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a
penalty. In addition, we express no opinion with respect to (i) whether acceleration of the Debt Securities may affect the collectability
of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon, (ii) compliance
with laws relating to permissible rates of interest or (iii) the creation, validity, perfection or priority of any security interest
or lien.
W&T Offshore, Inc.
October 10, 2024
Page 7
To the extent that the obligations of the Company under any Governing
Document may be dependent on such matters, we assume for purposes of this opinion that the applicable Governing Document Counterparty
is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the applicable Governing
Document Counterparty is duly qualified to engage in the activities contemplated by applicable Governing Document; that the applicable
Governing Document has been duly authorized, executed and delivered by the applicable Governing Document Counterparty and constitutes
the legally valid and binding obligations of such Governing Document Counterparty, enforceable against such Governing Document Counterparty
in accordance with its terms; that the applicable Governing Document Counterparty is in compliance, generally and with respect to acting
as trustee, warrant agent, depositary or other counterparty, as the case may be, under the applicable Governing Document, with all applicable
laws and regulations; and that the applicable Governing Document Counterparty has the requisite organizational and legal power and authority
to perform its obligations under the applicable Governing Document.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters”
in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states
to the sale of the Securities.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. The Securities may be issued from time to time on a delayed
or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof,
which laws are subject to change with possible retroactive effect. We assume no obligation to revise or supplement this opinion should
the present laws of the State of Texas or New York or the General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of
the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
Exhibit 22.1
LIST OF SUBSIDIARY GUARANTORS
The debt securities offered by the prospectus contained
in the registration statement, of which this Exhibit 22.1 is a part, and any applicable prospectus supplement, which may be issued
in one or more series by W&T Offshore, Inc. (the “Issuer”), may be fully and unconditionally guaranteed by each of
the subsidiaries of the Issuer identified in the table below.
| Exact Name of Additional Registrants |
|
State or Other Jurisdiction of Incorporation
or Organization |
| W & T Energy VI, LLC |
|
Delaware |
| W & T Energy VII, LLC |
|
Delaware |
| Aquasition III LLC |
|
Delaware |
| Aquasition IV LLC |
|
Delaware |
| Aquasition V LLC |
|
Delaware |
| Falcon Aero Holdings LLC |
|
Delaware |
| Falcon Aero Holdco LLC |
|
Delaware |
| Green Hell LLC |
|
Delaware |
| Seaquester LLC |
|
Delaware |
| Seaquestration LLC |
|
Delaware |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the
reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of
W&T Offshore, Inc. for the registration of 50,605,082 shares of its common stock and the registration of debt securities,
guarantees of debt securities, common stock, preferred stock, depositary shares, and warrants up to a maximum aggregate offering
price of $500,000,000, and to the incorporation by reference therein of our reports dated March 6, 2024, with respect to the
consolidated financial statements of W&T Offshore, Inc. and subsidiaries, and the effectiveness of internal control over
financial reporting of W&T Offshore, Inc. and subsidiaries, included in its Annual Report (Form 10-K) for the year
ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
LLP
Houston, Texas
October 10, 2024
Exhibit 23.2
CONSENT OF INDEPENDENT
PETROLEUM ENGINEERS AND GEOLOGISTS
As independent consultants, Netherland, Sewell
& Associates, Inc. hereby consents to the incorporation by reference in the Form S-3 of W&T Offshore, Inc. to be filed on or about
October 10, 2024, and as referenced in the Annual Report on Form 10-K of W&T Offshore, Inc. filed on March 6, 2024, of information
from our reserves report with respect to the reserves of W&T Offshore, Inc. dated January 24, 2024, and entitled "Estimates of
Reserves and Future Revenue to the W&T Offshore, Inc. Interest in Certain Oil and Gas Properties Located in State Waters Offshore
Alabama, Louisiana, and Texas, and in Federal Waters in the Gulf of Mexico as of December 31, 2023", and to the use of our reports
on reserves and the incorporation of the reports on reserves for the years ended 2019, 2020, 2021, and 2022. We also consent to W&T
Offshore, Inc.'s use of the phrase "independent petroleum consultant" as referencing Netherland, Sewell & Associates, Inc.
| |
NETHERLAND, SEWELL & ASSOCIATES,
INC. |
| |
|
| |
By: |
/s/ Eric J. Stevens |
| |
|
Eric J. Stevens, P.E. |
| |
|
President and Chief Operating Officer |
Dallas, Texas
October 10, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
W&T OFFSHORE, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
| |
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering Price
Per Unit |
|
Maximum
Aggregate
Offering Price |
|
Fee
Rate |
|
Amount
of
Registration
Fee |
|
Carry
Forward
Form Type |
|
Carry
Forward File
Number |
|
Carry
Forward
Initial
Effective
Date |
|
Filing
Fee
Previously
Paid in
Connection
with Unsold
Securities to
be Carried
Forward |
| Newly Registered
Securities |
| Fees to Be Paid (Primary) |
|
Equity |
|
Common
Stock, par value $0.00001 per share |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Preferred
Stock, par value $0.00001 per share |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Debt
Securities |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Guarantees
of Debt Securities(4) |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Depositary
Shares |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Warrants |
|
457(o) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Unallocated
(Universal Shelf) |
|
— |
|
457(o) |
|
(1)(2) |
|
(3) |
|
$16,998,753.00(6) |
|
0.00015310 |
|
$ 2,603.00 |
|
|
|
|
|
|
|
|
| Fees to Be Paid (Secondary) |
|
Equity |
|
Common
Stock, par value $0.00001 per share |
|
457(o) |
|
2,305,941 |
|
(5) |
|
$5,303,664.30(7) |
|
0.00015310 |
|
$ 812.00 |
|
|
|
|
|
|
|
|
| Carry Forward
Securities |
| Carry Forward Securities
(Primary) |
|
Equity |
|
Common
Stock, par value $0.00001 per share |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Preferred
Stock, par value $0.00001 per share |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Debt
Securities |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Guarantees
of Debt Securities(4) |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Depositary
Shares |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Warrants |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Unallocated
(Universal Shelf) |
|
— |
|
415(a)(6) |
|
(1)(2) |
|
(3) |
|
$483,001,247.00(6) |
|
|
|
(6) |
|
Form
S-3 |
|
333-260248 |
|
October
25, 2021 |
|
$44,774.00(6) |
| Carry Forward Securities
(Secondary) |
|
Equity |
|
Common
Stock, par value $0.00001 per share |
|
415(a)(6) |
|
48,299,141 |
|
(5) |
|
(8) |
|
|
|
(8) |
|
Form
S-3 |
|
333-260248 |
|
October
25, 2021 |
|
$269.22(8) |
| |
|
|
|
Total
Offering Amounts |
|
$22,302,417.30 |
|
|
|
$3,415.00 |
|
|
|
|
|
|
|
|
| |
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
|
|
Total
Fee Offsets |
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
|
|
Net
Fee Due |
|
|
|
|
|
$3,415.00 |
|
|
|
|
|
|
|
|
| (1) |
There are being registered hereunder such indeterminate number or amount, as the case may be, of shares of common stock, preferred stock, debt securities, guarantees of debt securities, depositary shares and warrants to be sold by the Registrant from time to time at indeterminate prices, which together shall have a maximum aggregate offering price not to exceed $500,000,000. Any securities registered hereunder may be sold separately or in combination with the other securities registered hereunder. This registration statement also covers an indeterminate number or amount, as the case may be, of securities that may be issued in exchange for, or upon conversion or exercise of, as the case may be, the securities registered hereunder, including under any applicable anti-dilution provisions. If any debt securities are issued at an original issue discount, then the principal amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $500,000,000.00, less the aggregate dollar amount of all securities previously issued hereunder. |
| |
|
| (2) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| |
|
| (3) |
The proposed maximum offering price per share will be determined, from time to time, by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables and Related Disclosure on Item 16(b) of Form S-3 under the Securities Act. |
| |
|
| (4) |
Subsidiaries of W&T Offshore, Inc. named as co-registrants may fully and unconditionally guarantee on an unsecured basis the debt securities of W&T Offshore, Inc. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantee of the debt securities being registered. |
| |
|
| (5) |
With respect to the offering of shares of the Registrant’s common stock by the selling shareholder, the proposed maximum offering price per share will be delivered from time to time in connection with, and at the time of, a sale by the selling stockholder. |
| |
|
| (6) |
The Registrant previously filed a registration statement on Form S-3 (File No. 333-260248), initially filed by the registrant with the Securities and Exchange Commission on October 14, 2021 and declared effective on October 25, 2021 (the “Prior Registration Statement”), registering an aggregate of $500,000,000.00 of an indeterminate number of securities to be offered by the Registrant from time to time. The Registrant did not owe a filing fee after giving effect to a fee offset for the $500,000,000.00 of securities registered on the Prior Registration Statement. On March 18, 2022, the Registrant initiated an At-The-Market program for its common stock having an aggregate gross sales price of up to $100,000,000.00 (the “ATM Program”). To date, the Registrant has sold shares of common stock having an aggregate gross sales price of $16,998,753.00 under the ATM Program. In connection therewith, $483,001,247.00 of the securities registered on the Prior Registration Statement remain unsold, leaving $44,774.00 in previously paid fees available to use in connection with carrying forward the unsold securities from the Prior Registration Statement (calculated at the fee rate in effect on the filing date of the Prior Registration Statement). Accordingly, a registration fee of $2,603.00 is due to be paid at this time for the registration of the securities offered hereby. Concurrently with the effectiveness of this registration statement, any offering of unsold securities pursuant to the Prior Registration Statement is hereby terminated. |
| |
|
| (7) |
Estimated solely for the purposes of computing the registration fee in accordance with pursuant to Rule 457(c) under the Securities Act, based upon $2.31, the average of the high and low prices of the Registrant’s common stock as quoted on the New York Stock Exchange on October 9, 2024 (a date within five business days prior to the filing of this registration statement). |
| |
|
| (8) |
Represents 48,299,141 shares of common stock being carried forward hereunder (the “Unsold Secondary Securities”) that were previously registered for resale by the selling shareholder pursuant to the Prior Registration Statement that remain unsold. The Registrant previously filed the Prior Registration Statement registering the Unsold Secondary Securities for resale by the selling shareholder from time to time, for which the Registrant paid a filing fee of $269.22 after giving effect to a fee offset. In connection therewith, all 48,299,141 shares of the Unsold Secondary Securities remain unsold leaving $269.22 in previously paid fees available to carry forward (calculated at the fee rate in effect on the filing date of the Prior Registration Statement). Accordingly, a registration fee of $812.00 is due to be paid at this time for the registration of the secondary securities offered hereby. Concurrently with the effectiveness of this registration statement, any offering of unsold securities pursuant to the Prior Registration Statement is hereby terminated. |
W and T Offshore (NYSE:WTI)
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から 10 2024 まで 11 2024
W and T Offshore (NYSE:WTI)
過去 株価チャート
から 11 2023 まで 11 2024
