As
filed with the Securities and Exchange Commission on February 24, 2017
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Camber
Energy, Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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20-2660243
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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450
Gears Road, Suite 860
Houston,
Texas 77067
(713)
528-1881
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Paul
Pinkston
Chief Accounting Officer, Treasurer and Secretary
Camber Energy, Inc.
450 Gears Road, Suite 860
Houston,
Texas 77067
(713)
528-1881
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
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Robert
G. Reedy
Kevin
J. Poli
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Porter
Hedges LLP
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1000
Main, 36th Floor
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Houston,
Texas 77002
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Telephone:
(713) 226-6674
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Telecopy:
(713) 228-1331
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Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, 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, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated
filer ☐ (Do not check if a smaller reporting company)
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Smaller reporting company ☒
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to Be Registered (1)
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Proposed
Maximum
Aggregate
Offering Price (5)
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Amount
of
Registration
Fee (6)
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Debt
Securities (2)
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Common
Stock, par value $.001 per share
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Preferred
Stock, par value $.001 per share
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Depositary
Shares (3)
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Warrants
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Subscription
Rights
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Purchase
Contracts
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Units
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Guarantees
of the Non-Convertible Debt Securities (4)
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Total
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$150,000,000
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$17,385
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(1)
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The
securities registered consist of $150,000,000 of an indeterminate number or amount of
Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Subscription
Rights, Purchase Contracts Units and Guarantees, as may be issued from time to time at
indeterminate prices. In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed $150,000,000
or the equivalent thereof in foreign currencies, foreign currency units or composite
currencies. This registration statement also covers an indeterminate amount of securities
registered hereunder and listed in the “Calculation of Registration Fee”
table above as may be issued in exchange for, or upon conversion or exercise of, as the
case may be, the securities registered hereunder and listed in the “Calculation
of Registration Fee” table above.
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(2)
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If
any Debt Securities are issued at an original issue discount, then the offering price
of the Debt Securities shall be in such amount as shall result in an aggregate initial
offering price not to exceed $150,000,000 less the offering price of any security previously
issued hereunder.
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(3)
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Such
indeterminate number of Depositary Shares to be evidenced by Depositary Receipts issued
pursuant to a deposit agreement. In the event that the registrant elects to offer to
the public fractional interests in shares of Preferred Stock registered hereunder, Depositary
Receipts will be distributed to those persons purchasing the fractional interests and
the shares of Preferred Stock will be issued to the depositary under the deposit agreement.
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(4)
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Subsidiaries
of Camber Energy, Inc. named as co-registrants may fully, irrevocably and unconditionally
guarantee on an unsecured basis the non-convertible debt securities of Camber Energy,
Inc. Pursuant to Rule 457(n) of the Securities Act of 1933, no separate fee is payable
in connection with the Guarantees.
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(5)
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The
proposed maximum aggregate offering price has been estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o) of the Securities Act of 1933,
as amended, or the Securities Act.
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(6)
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Calculated
in accordance with Rule 457(o) of the Securities Act.
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The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Commission acting pursuant to said Section 8(a), may determine.
*TABLE
OF ADDITIONAL REGISTRANTS
The
following subsidiaries of Camber Energy, Inc. are co-registrants under this registration statement.
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Name
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Jurisdiction
of
Incorporation or
Organization
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I.R.S.
Employer
Identification Number
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CEI Operating LLC
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Texas
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81-4630032
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Camber Permian LLC
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Texas
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81-5377234
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The
address for each of the co-registrants is c/o Camber Energy, Inc., 450 Gears Road, Suite 860, Houston, Texas 77067, Telephone:
(713) 528-1881.
The
name and address, including zip code, of the agent for service for each of the co-registrants is Paul Pinkston, Chief Accounting
Officer of Camber Energy, Inc., 450 Gears Road, Suite 860, Houston, Texas 77067. The telephone number, including area code, of
the agent for service for each of the co-registrants is (713) 528-1881.
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 where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 24, 2017
PROSPECTUS
Camber
Energy, Inc.
$150,000,000
Debt
Securities
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Subscription
Rights
Purchase
Contracts
Units
Guarantees
of Non-Convertible Debt Securities
We
may offer from time to time debt securities, shares of our common stock, shares of our preferred stock, depositary shares, warrants,
subscription rights, purchase contracts and units that include any of these securities. Any non-convertible debt securities we
issue under this prospectus may be guaranteed by certain of our subsidiaries.
The
aggregate initial offering price of the securities that we offer will not exceed $150,000,000. We will offer the securities in
amounts, at prices and on terms to be determined at the time of the offering.
Our
common stock is quoted on the NYSE MKT under the symbol “CEI.” The last reported sale price of our common stock on
February 22, 2017 was $0.69 per share.
The
aggregate market value of our outstanding common stock held by non-affiliates was $11,765,061 based on 23,766,733 shares of outstanding
common stock as of February 22, 2017, of which approximately 17,050,814 shares were held by non-affiliates, and based on the last
reported sale price of our common stock as noted above. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we
sell securities pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common stock
held by non-affiliates in any 12-month period, so long as the aggregate market value of our common stock held by non-affiliates
is less than $75,000,000. In the event that subsequent to the date of this prospectus, the aggregate market value of our outstanding
common stock held by non-affiliates equals or exceeds $75,000,000, then the one-third limitation on sales shall not apply to additional
sales made pursuant to this prospectus.
We
may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on
a continuous or delayed basis.
We
will provide the specific terms of the offering in supplements to this prospectus. You should read this prospectus and any supplement
carefully before you invest. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus
supplement.
Investing
in our securities involves significant risks that are described in the “Risk Factors” section beginning on page
7 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2017.
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the Commission, utilizing
a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar amount of $150,000,000. This prospectus provides you
with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of the offering and the offered securities. This prospectus, together with
applicable prospectus supplements, any information incorporated by reference, and any related free writing prospectuses we file
with the Commission, includes all material information relating to these offerings and securities. We may also add, update or
change in the prospectus supplement any of the information contained in this prospectus or in the documents that we have incorporated
by reference into this prospectus, including without limitation, a discussion of any risk factors or other special considerations
that apply to these offerings or securities or the specific plan of distribution. If there is any inconsistency between the information
in this prospectus and a prospectus supplement or information incorporated by reference having a later date, you should rely on
the information in that prospectus supplement or incorporated information having a later date. We urge you to read carefully this
prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated
herein by reference as described under the heading “Incorporation of Certain Documents By Reference,” and the additional
information described under the heading “Where You Can Find More Information,” before buying any of the securities
being offered.
You
should rely only on the information we have provided or incorporated by reference in this prospectus, any applicable prospectus
supplement and any related free writing prospectus. We have not authorized anyone to provide you with different information. No
dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus,
any applicable prospectus supplement or any related free writing prospectus.
Neither
the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information
in this prospectus is correct as of any date after the date of this prospectus. You should assume that the information in this
prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the
front of the document and that any information we have incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any
related free writing prospectus, or any sale of a security.
The
registration statement containing this prospectus, including exhibits to the registration statement, provides additional information
about us and the securities offered under this prospectus and any prospectus supplement. We have filed and plan to continue to
file other documents with the Commission that contain information about us and our business. Also, we will file legal documents
that control the terms of the securities offered by this prospectus as exhibits to the reports that we file with the Commission.
The registration statement and other reports can be read at the Commission website or at the Commission offices mentioned under
the heading “Where You Can Find More Information.”
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under “Where You Can Find More Information.”
CAMBER
ENERGY, inc.
Camber
Energy, Inc., a Nevada corporation, is an independent oil and natural gas company based in Houston, Texas. We are engaged in the
acquisition, development and sale of crude oil, natural gas and natural gas liquids from various known productive geological formations,
including the recently acquired properties in the Hunton formation in Lincoln, Logan and Payne Counties, in central Oklahoma;
the Austin Chalk and Eagle Ford formations, primarily in Gonzales County, Texas; the Cline shale and upper Wolfberry shale in
Glasscock County, Texas; and our entry into the Horizontal San Andres play on the Central Basin Platform of the Permian Basin
in West Texas announced on January 3, 2017.
As
used in this prospectus, the terms the “Company,” “we,” “us” and “our” mean Camber
Energy, Inc. and its subsidiaries and predecessors, unless the context indicates otherwise. Our fiscal year ends on March 31 of
each year.
Our
principal business office is located at 450 Gears Road, Suite 860, Houston, Texas 77067, and our telephone number is (713) 528-1881.
Our website address is www.camber.energy Information contained on our website or any other website does not constitute part of,
and is not incorporated into, this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
The
information discussed in this prospectus, our filings with the Commission and our public releases include “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section
21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, the Private Securities Litigation Reform Act of 1995,
or the PSLRA, or in releases made by the Commission. Such forward-looking statements involve known and unknown risks, uncertainties
and other important factors that could cause the actual results, performance or achievements of the Company to differ materially
from any future results, performance or achievements expressed or implied by such forward-looking statements. Statements that
are not historical fact are forward-looking statements. Forward-looking statements can be identified by, among other things, the
use of forward-looking language, such as the words “plan,” “believe,” “expect,” “anticipate,”
“intend,” “estimate,” “project,” “may,” “will,” “would,”
“could,” “should,” “seeks,” or “scheduled to,” or other similar words, or the
negative of these terms or other variations of these terms or comparable language, or by discussion of strategy or intentions.
These cautionary statements are being made pursuant to the Securities Act, the Exchange Act and the PSLRA with the intention of
obtaining the benefits of the “safe harbor” provisions of such laws.
The
forward-looking statements contained in or incorporated by reference into this prospectus are largely based on our expectations,
which reflect estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based
on currently known market conditions and other factors. Although we believe such estimates and assumptions to be reasonable, they
are inherently uncertain and involve a number of risks and uncertainties that are beyond our control, including:
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risks
associated with the debt assumed at the closing of the Segundo acquisition;
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our
ability to achieve the synergies and value creation contemplated by the Segundo acquisition;
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our
ability to effectively integrate the assets acquired in the Segundo acquisition;
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the
diversion of management time on Segundo acquisition-related issues;
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our
ability to regain compliance with the continued listing requirements of the NYSE MKT;
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the
possibility that our future acquisitions may involve unexpected costs;
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the
volatility in commodity prices for oil and gas;
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the
accuracy of internally estimated proved reserves;
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the
presence or recoverability of estimated oil and gas reserves;
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the
ability to replace oil and gas reserves;
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the
availability and costs of drilling rigs and other oilfield services;
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risks
inherent in natural gas and oil drilling and production activities, including risks of
fire, explosion, blowouts, pipe failure, casing collapse, unusual or unexpected formation
pressures, environmental hazards, and other operating and production risks;
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delays
in receipt of drilling permits;
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risks
relating to the availability of capital to fund drilling operations that can be adversely
affected by adverse drilling results, production declines and declines in natural gas
and oil prices;
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risks
relating to unexpected adverse developments in the status of properties;
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risks
relating to the absence or delay in receipt of government approvals or other third party
consents;
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risks
relating to governmental regulations regarding hydraulic fracturing and the disposition/disposal
of produced water;
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exploration
and development risks;
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the
inability to realize expected value from acquisitions;
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the
availability and cost of alternative fuel sources;
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our
limited market capitalization;
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the
ability of our management team to execute its plans to meet its goals; and
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other
economic, competitive, governmental, legislative, regulatory, geopolitical and technological
factors that may negatively impact our businesses, operations and pricing.
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Many
of these factors are beyond our ability to control or predict. These factors are not intended to represent a complete list of
the general or specific factors that may affect us.
In
addition, management’s assumptions about future events may prove to be inaccurate. All readers are cautioned that the forward-looking
statements contained in this prospectus and in the documents incorporated by reference into this prospectus are not guarantees
of future performance, and we cannot assure any reader that such statements will be realized or that the forward-looking events
and circumstances will occur. Actual results may differ materially from those anticipated or implied in the forward-looking statements
due to factors described in “Risk Factors” included elsewhere in this prospectus and in the documents that we include
in or incorporate by reference into this prospectus, including our Annual Report on Form 10-K for the fiscal year ended March
31, 2016, our Quarterly Report on Form 10-Q for the quarterly periods ended June 30, 2016, September 30, 2016 and December 31,
2016, and our subsequent Commission filings. All forward-looking statements speak only as of the date they are made. We do not
intend to update or revise any forward-looking statements as a result of new information, future events or otherwise, except as
required by law. These cautionary statements qualify all forward-looking statements attributable to us or persons acting on our
behalf.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and file reports, proxy statements and other information with
the Commission as required by the Exchange Act. These reports, proxy statements and other information can be inspected and copied
at the Commission’s Public Reference room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information
on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. In addition, the Commission maintains
an Internet site at
www.sec.gov
that contains reports, proxy and information statements, and other information regarding
issuers that file electronically with the Commission. We maintain a website at
www.camber.energy.
Information on our website
or any other website is not incorporated by reference into this prospectus and does not constitute part of this prospectus.
We
have filed a registration statement with the Commission on Form S-3 (including any amendments thereto, known as the registration
statement) under the Securities Act with respect to the securities offered hereby. This prospectus does not contain all of the
information set forth in the registration statement and the exhibits and schedules thereto. You may refer to the registration
statement and the exhibits and schedules thereto for more information about the offered securities and us. Statements made in
this prospectus regarding the contents of any contract or document filed as an exhibit to the registration statement are not necessarily
complete and, in each instance, reference is hereby made to the copy of such contract or document so filed. Each such statement
is qualified in its entirety by such reference.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents, which have previously been filed by us with the Commission under the Exchange Act, are incorporated herein
by reference:
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Our
Annual Report on Form 10-K for the fiscal year ended March 31, 2016, filed with the Commission
on July 13, 2016 (File No. 001-32508);
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Our
Quarterly Reports on Form 10-Q for the fiscal periods ended June, 30, 2016, September
30, 2016 and December 31, 2016, filed with the Commission on August 12, 2016, November
14, 2016 and February 14, 2017, respectively (File No. 001-32508);
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A
description of our capital stock contained in our Form 8-A filed with the Commission
on February 13, 2008 (File No. 001-32508); and
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Our
Current Reports on Form 8-K and Form 8-K/A, filed with the Commission on April 1, 2016,
April 7, 2016, April 15, 2016, April 25, 2016, May 2, 2016 (two reports), July 22, 2016,
August 12, 2016, August 23, 2016, August 25, 2016, August 31, 2016, September 8, 2016,
September 27, 2016, October 3, 2016, October 6, 2016, October 12, 2016, November 1, 2016,
November 21, 2016, December 5, 2016, January 3, 2017, January 5, 2017, January 25, 2017,
January 27, 2017, January 27, 2017, February 6, 2017, February 13, 2017, February 15,
2017 and February 23, 2017 (File No. 001-32508) (excluding any information furnished
pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K).
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All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished
pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01
or included as an exhibit) after the date of the initial registration statement and prior to the effectiveness of the registration
statement and after the date of this prospectus and prior to the termination of each offering under this prospectus shall be deemed
to be incorporated in this prospectus by reference and to be a part hereof from the date of filing of such documents. Any statement
contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
This
prospectus incorporates documents by reference that are not delivered with the prospectus. Copies of these documents, other than
the exhibits to the documents (unless such exhibits are specifically incorporated by reference in such documents), are available
upon written or oral request, at no charge, from us. Requests for such copies should be directed to the Corporate Secretary at
Camber Energy, Inc., 450 Gears Road, Suite 860, Houston, Texas 77067, or by telephone at (713) 528-1881.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should carefully consider the risk factors described below, as
well as those risk factors and all of the other information included in, or incorporated by reference into, this prospectus, including
those risk factors included in our Annual Report on Form 10-K for the year ended March 31, 2016, our Quarterly Reports on Form
10-Q for the quarterly periods ended June 30, 2016, September 30, 2016 and December 31, 2016, and our subsequent Commission filings,
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 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.
USE
OF PROCEEDS
Unless
we inform you otherwise in the prospectus supplement or any pricing supplement, we will use the net proceeds from the sale of
the offered securities for general corporate purposes. These purposes may include capital expenditures, repayment or refinancing
of indebtedness, acquisitions and repurchases and redemptions of securities. Pending any specific application, we may initially
invest funds in short-term marketable securities or apply them to the reduction of indebtedness.
DILUTION
Our
net tangible book value at December 31, 2016 was $1.01 per share of common stock. Net tangible book value per share of common
stock is determined by dividing our tangible net worth, which is tangible assets less liabilities, by the total number of shares
of our common stock outstanding. If we offer shares of our common stock, purchasers of our common stock in that offering may experience
immediate dilution in net tangible book value per share. The prospectus supplement relating to an offering of shares of our common
stock will set forth the information regarding any dilutive effect of that offering.
DESCRIPTION
OF DEBT SECURITIES
Our
debt securities, consisting of notes, debentures or other evidences of indebtedness, may be issued from time to time in one or
more series:
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in
the case of senior debt securities, under a senior indenture to be entered into among
us, the guarantors of those securities, if any, and a trustee we will identify in a prospectus
supplement; and
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in
the case of subordinated debt securities, under a subordinated indenture to be entered
into among us, the guarantors of those securities, if any, and a trustee we will identify
in a prospectus supplement.
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Any
such senior indenture or subordinated indenture will be substantially in the form included as exhibits to the registration statement
of which this prospectus is a part.
Because
the following is only a summary of the indentures and the debt securities, it does not contain all information that you may find
useful. For further information about the indentures and the debt securities, we urge you to read the indentures, the forms of
securities, the applicable prospectus supplements and the applicable supplemental indentures.
As
used in this section of the prospectus and under the captions “Description of Capital Stock,” “Description of
Depositary Shares,” “Description of Warrants,” “Description of Subscription Rights,” “Description
of Purchase Contracts,” and “Description of Units,” the terms “we,” “us,” “our,”
the “Company” and “Camber” mean Camber Energy, Inc. only, and not the subsidiaries of Camber Energy, Inc.
Capitalized terms not otherwise defined in this Description of Debt Securities have the meanings given to them in the aforementioned
indentures.
Unless
otherwise specified in a prospectus supplement, any debt securities we offer will be our direct, unsecured general obligations.
The debt securities will be either senior debt securities or subordinated debt securities, either of which may be issued in registered
or global form. The senior debt securities will rank equally with all of our other senior and unsubordinated debt. The subordinated
debt securities will be subordinated in right of payment to certain of our senior debt. In general, this means that if we declare
bankruptcy, holders of the senior debt securities and certain other senior debt will be paid in full before the holders of subordinated
debt securities will receive any payment on their securities. Non-convertible debt securities may be fully, irrevocably and unconditionally
guaranteed, on a joint and several basis, by some or all of our subsidiaries, other than “minor” subsidiaries as such
term is interpreted in securities regulations governing financial reporting for guarantors.
We
conduct substantially all of our operations through our subsidiaries. Consequently, our ability to repay our obligations, including
our obligation to pay interest on the debt securities, to repay the principal amount of the debt securities at maturity or upon
redemption, or to buy back the securities, depends to a certain extent upon our ability to receive cash flow from our subsidiaries.
That is, we will depend upon our subsidiaries’ earnings and their distributions of those earnings to us, and upon our subsidiaries
repayment of investments and advances we have made to them to meet our obligations under the debt securities and our other obligations.
Our subsidiaries are separate and distinct legal entities and, except to the extent our subsidiaries guarantee the non-convertible
debt securities, have no obligation, contingent or otherwise, to pay any amounts due on the debt securities or to make funds available
to us to do so.
Generally,
the debt securities will be effectively subordinated to all existing and future secured indebtedness of our subsidiaries and us
and to all existing and future indebtedness of all non-guarantor subsidiaries. This means that our rights and the rights of our
creditors, including the holders of our debt securities, to receive any of the cash or other assets of any subsidiary upon its
liquidation or reorganization or otherwise are necessarily subject to the superior claims of creditors of the subsidiary, except
to the extent that we or our creditors may be recognized as creditors of the subsidiary. Our subsidiaries’ ability to pay
dividends or make other payments or advances to us will also depend upon their operating results and will be subject to applicable
laws and contractual restrictions. Unless otherwise specified in an applicable prospectus supplement, the indentures do not limit
our subsidiaries’ ability to enter into other agreements that prohibit or restrict dividends or other payments or advances
to us.
The
indentures do not limit the aggregate principal amount of debt securities that can be issued. The debt securities may be issued
in one or more series as we may authorize from time to time. A prospectus supplement and a supplemental indenture relating to
the offering of a particular series of debt securities will set forth the specific terms of the offered debt securities.
These
terms will include some or all of the following:
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the
title of the debt securities and whether they are subordinated debt securities or senior
debt securities;
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any
limit on the aggregate principal amount of the debt securities;
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the
ability to issue additional debt securities of the same series;
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the
price or prices at which we will sell the debt securities;
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the
maturity date or dates of the debt securities;
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the
rate or rates of interest, if any, which may be fixed or variable, at which the debt
securities will bear interest, or the method of determining such rate or rates, if any;
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the
date or dates from which any interest will accrue or the method by which such date or
dates will be determined;
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in
the case of discount debt securities, the rate of accretion of principal, which may be
fixed or variable, or the method of determining such rate, and the date or dates from
which principal will accrete or the method by which such date or dates will be determined;
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the
right, if any, to extend the interest payment periods and the duration of any such deferral
period, including the maximum consecutive period during which interest payment periods
may be extended;
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the
dates on which we will pay interest on the debt securities and the regular record date
for determining who is entitled to the interest payable on any interest payment date;
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the
place or places where the principal of (and premium, if any) and interest on the debt
securities will be payable, where any securities may be surrendered for registration
of transfer, exchange or conversion, as applicable, and notices and demands may be delivered
to or upon us pursuant to the indenture;
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if
we possess the option to do so, the periods within which and the prices at which we may
redeem the debt securities, in whole or in part, pursuant to optional redemption provisions,
and the other terms and conditions of any such provisions;
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our
obligation, if any, to redeem, repay or purchase debt securities by making periodic payments
to a sinking fund or through an analogous provision or at the option of holders of the
debt securities, and the period or periods within which and the price or prices at which
we will redeem, repay or purchase the debt securities, in whole or in part, pursuant
to such obligation, and the other terms and conditions of such obligation;
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the
denominations in which the debt securities will be issued, if other than denominations
of $1,000 and integral multiples of $1,000;
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whether
the amount of payments of principal of (and premium, if any) or interest on the debt
securities may be determined with reference to any index, formula or other method, such
as one or more currencies, commodities, equity indices or other indices, and the manner
of determining the amount of such payments;
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the
portion, or methods of determining the portion, of the principal amount of the debt securities
which we must pay upon the acceleration of the maturity of the debt securities in connection
with an Event of Default (as described below), if other than the full principal amount;
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provisions,
if any, granting special rights to holders of the debt securities upon the occurrence
of specified events;
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any
deletions from, modifications of or additions to the Events of Default or our covenants
with respect to the applicable series of debt securities, and whether or not such Events
of Default or covenants are consistent with those contained in the applicable indenture;
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any
limitation on our ability to incur debt, redeem stock, sell our assets or other restrictions;
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the
application, if any, of the terms of the indenture relating to legal defeasance and covenant
defeasance (which terms are described below) to the debt securities;
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whether
the subordination provisions summarized below or different subordination provisions will
apply to the debt securities;
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the
terms, if any, upon which the holders may convert or exchange (or upon which we may require
the holders to convert or exchange) the debt securities into or for common stock, preferred
stock or other securities or property of ours or of another person (or upon which such
debt securities shall automatically convert or be exchanged into or for such other securities
or property);
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whether
any of the debt securities will be issued in global form and, if so, the terms and conditions
upon which global debt securities may be exchanged for certificated debt securities;
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any
change in the right of the trustee or the requisite holders of debt securities to declare
the principal amount thereof due and payable because of an Event of Default;
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the
depository for global or certificated debt securities;
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any
trustees, authenticating or paying agents, transfer agents or registrars or other agents
with respect to the debt securities;
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to
whom any interest on any debt security shall be payable, if other than the person in
whose name the security is registered, on the record date for such interest, the extent
to which, or the manner in which, any interest payable on a temporary global debt security
will be paid if other than in the manner provided in the applicable indenture;
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if
the principal of or any premium or interest on any debt securities of the series is to
be payable in one or more currencies or currency units other than as stated, the currency,
currencies or currency units in which it shall be paid and the periods within and terms
and conditions upon which such election is to be made and the amounts payable (or the
manner in which such amount shall be determined);
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the
collateral, if any, securing such debt securities, and the guarantors, if any, who will
guarantee such non-convertible debt securities, or the methods of determining such collateral,
if any, and such guarantors, if any;
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the
portion of the principal amount of any securities of the series which shall be payable
upon declaration of acceleration of the maturity of the debt securities pursuant to the
applicable indenture if other than the entire principal amount;
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if
the principal amount payable at the stated maturity of any debt security 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, 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);
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to
add to, change or eliminate any of the provisions of the indentures to such extent as
shall be necessary to add any of our subsidiaries as a co-issuer of debt securities of
an applicable series; and
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any
other terms of the debt securities not inconsistent with the provisions of the indentures,
as amended or supplemented.
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Unless
otherwise specified in the applicable prospectus supplement, the debt securities will be issued in fully-registered form without
coupons.
Debt
securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. The applicable prospectus supplement will describe the federal income tax
consequences and special considerations applicable to any such debt securities. The debt securities may also be issued as indexed
securities or securities denominated in foreign currencies, currency units or composite currencies, as described in more detail
in the prospectus supplement relating to any of the particular debt securities. The prospectus supplement relating to specific
debt securities will also describe any special considerations and certain additional tax considerations applicable to such debt
securities.
Subordination
The
prospectus relating to any offering of subordinated debt securities will describe the specific subordination provisions. However,
unless otherwise noted in the prospectus supplement, subordinated debt securities will be subordinate and junior in right of payment
to any Senior Debt on the terms set forth below:
Under
the subordinated indenture, “Senior Debt” means all amounts due on obligations in connection with any of the following,
whether outstanding at the date of execution of the subordinated indenture or thereafter incurred or created:
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the
principal of (and premium, if any) and interest due on our indebtedness for borrowed
money and indebtedness evidenced by securities, debentures, bonds or other similar instruments
issued by us (including all mandatory obligations under repurchase agreements for the
payment of the repurchase price for the securities purchased pursuant thereto);
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any
of our obligations as lessee under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles;
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all
of our obligations for the reimbursement on any letter of credit, banker’s acceptance,
security purchase facility or similar credit transaction;
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all
of our obligations in respect of interest rate swap, cap or other agreements, interest
rate future or options contracts, currency swap agreements, currency future or option
contracts and other similar agreements;
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all
obligations of the types referred to above of other persons for the payment of which
we are responsible or liable as obligor, guarantor or otherwise; and
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all
obligations of the types referred to above of other persons secured by any lien on any
property or asset of ours (whether or not such obligation is assumed by us).
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However,
Senior Debt does not include:
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any
indebtedness which expressly provides that such indebtedness shall not be senior in right
of payment to the subordinated debt securities, or that such indebtedness shall be subordinated
to any other of our indebtedness, unless such indebtedness expressly provides that such
indebtedness shall be senior in right of payment to the subordinated debt securities;
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any
of our indebtedness in respect of the subordinated debt securities;
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any
indebtedness or liability for compensation to employees, for goods or materials purchased
in the ordinary course of business or for services;
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any
of our indebtedness to any subsidiary; or
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any
liability for federal, state, local or other taxes owed or owing by us.
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Senior
Debt shall continue to be Senior Debt and be entitled to the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Debt.
If
we default in the payment of any principal of (or premium, if any) or interest on any Senior Debt when it becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, unless and until such default is cured
or waived or ceases to exist, we will make no direct or indirect payment (in cash, property, securities, by set-off or otherwise
but excluding payments in securities which are subordinate in right of payment to all then outstanding Senior Debt, or “Junior
Securities”) in respect of the principal of or interest on the subordinated debt securities or in respect of any redemption,
retirement, purchase or other acquisition of any of the subordinated debt securities.
In
the event of the acceleration of the maturity of any subordinated debt securities, the holders of all senior debt securities outstanding
at the time of such acceleration, subject to any security interest, will first be entitled to receive payment in full of all amounts
due on the senior debt securities before the holders of the subordinated debt securities will be entitled to receive any payment
of principal (and premium, if any) or interest on the subordinated debt securities.
If
any of the following events occur, we will pay in full all Senior Debt before we make any payment or distribution under the subordinated
debt securities, whether in cash, securities or other property, to any holder of subordinated debt securities:
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any
dissolution or winding-up or liquidation or reorganization of Camber (or relating to
our property), whether voluntary or involuntary or in bankruptcy, insolvency or receivership;
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any
general assignment by us for the benefit of creditors; or
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any
other marshaling of our assets or liabilities.
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In
such event, any payment or distribution under the subordinated debt securities, whether in cash, securities or other property,
which would otherwise (but for the subordination provisions) be payable or deliverable in respect of the subordinated debt securities,
will be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt has been paid in full. If any payment or distribution under the subordinated debt securities is received
by the trustee of any subordinated debt securities in contravention of any of the terms of the subordinated indenture and before
all the Senior Debt has been paid in full (other than permitted payments in Junior Securities), such payment or distribution or
security will be received in trust for the benefit of, and paid over or delivered and transferred to, the holders of the Senior
Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment
of all Senior Debt remaining unpaid to the extent necessary to pay all such Senior Debt in full.
The
subordinated indenture does not limit the issuance of additional Senior Debt.
Subsidiary
Guarantees
If
specified in the prospectus supplement, our guarantor subsidiaries will guarantee the non-convertible debt securities of a series.
Unless otherwise indicated in the prospectus supplement, the following provisions will apply to the guarantees of the guarantor
subsidiaries.
Subject
to the limitations described below and in the prospectus supplement, the guarantor subsidiaries will, jointly and severally, fully
and unconditionally guarantee the punctual payment when due, whether at the maturity date, by acceleration or otherwise, of all
our payment obligations under the indentures and the non-convertible debt securities of a series, whether for principal of, premium,
if any, or interest on the non-convertible debt securities or otherwise. The guarantor subsidiaries will also pay all expenses
(including reasonable counsel fees and expenses) incurred by the applicable trustee in enforcing any rights under a guarantee
with respect to a guarantor subsidiary.
In
the case of subordinated non-convertible debt securities, a guarantee of a guarantor subsidiary will be subordinated in right
of payment to the senior debt of such guarantor subsidiary on the same basis as the subordinated non-convertible debt securities
are subordinated to our senior debt. No payment will be made by any guarantor subsidiary under its guarantee during any period
in which payments by us on the subordinated non-convertible debt securities are suspended by the subordination provisions of the
subordinated indenture.
Each
guarantee of a guarantor subsidiary will be limited to an amount not to exceed the maximum amount that can be guaranteed by the
relevant guarantor subsidiary without rendering such guarantee voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors generally.
Each
guarantee of a guarantor subsidiary will be a continuing guarantee and will:
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remain
in full force and effect until either (a) payment in full of all the applicable non-convertible
debt securities (or such non-convertible 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;
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be
binding upon each guarantor subsidiary; and
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inure
to the benefit of and be enforceable by the applicable trustee, the holders of the non-convertible
debt securities and their successors, transferees and assigns.
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In
the event that a guarantor subsidiary ceases to be our subsidiary, or all or substantially all of the assets or all of the capital
stock of any guarantor subsidiary is sold or disposed of, including by way of sale, merger, consolidation or otherwise, such guarantor
subsidiary will be released and discharged of its obligations under its guarantee without any further action required on the part
of the trustee or any holder of the non-convertible debt securities, and no other person acquiring or owning the assets or capital
stock of such guarantor subsidiary will be required to enter into a guarantee. If legal or covenant defeasance occurs with respect
to the non-convertible debt securities of any series, all the guarantor subsidiaries will be released and discharged from their
obligations under their guarantees. In addition, the prospectus supplement may specify additional circumstances under which a
guarantor subsidiary can be released from its guarantee.
Consolidation,
Merger, Sale of Assets and Other Transactions
We
may not merge with or into or consolidate with another entity or sell, assign, transfer, lease or convey all or substantially
all of our properties and assets to, any other entity other than a direct or indirect wholly owned subsidiary of ours, and no
entity may merge with or into or consolidate with us or, except for any direct or indirect wholly owned subsidiary of ours, sell,
assign, transfer, lease or convey all or substantially all of its properties and assets to us, unless:
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we
are the surviving corporation or the entity formed by or surviving such merger or consolidation
or to which such sale, assignment, transfer, lease or conveyance has been made, if other
than us, has expressly assumed by supplemental indenture all of our obligations under
the applicable indenture;
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immediately
after giving effect to such transaction, no default or Event of Default has occurred
and is continuing; and
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we
deliver to the trustee an officers’ certificate and an opinion of counsel, each
stating that the supplemental indenture complies with the applicable indenture.
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Events
of Default, Notice and Waiver
Unless
an accompanying prospectus supplement states otherwise, the following shall constitute “Events of Default” under the
indentures with respect to each series of debt securities:
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our
failure to pay any interest on any debt security of such series when due and payable,
continued for 30 days;
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our
failure to pay principal (or premium, if any) on any debt security of such series when
due, regardless of whether such payment became due because of maturity, redemption, acceleration
or otherwise, or is required by any sinking fund established with respect to such series;
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our
failure to observe or perform any other of our covenants or agreements with respect to
such debt securities for 90 days after we receive notice of such failure;
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certain
events of bankruptcy, insolvency or reorganization of Camber; and
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any
other Event of Default provided with respect to securities of that series.
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If
an Event of Default with respect to any debt securities of any series outstanding under an indenture shall occur and be continuing,
the trustee under such indenture or the holders of at least 25% in aggregate principal amount of the debt securities of that series
outstanding may declare, by notice as provided in the applicable indenture, the principal amount (or such lesser amount as may
be provided for in the debt securities of that series) of all the debt securities of that series outstanding to be due and payable
immediately.
However,
in the case of an Event of Default involving certain events in bankruptcy, insolvency or reorganization, acceleration is automatic.
After such acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration
if all Events of Default, other than the nonpayment of accelerated principal, have been cured or waived. Upon the acceleration
of the maturity of original issue discount securities, an amount less than the principal amount thereof will become due and payable.
Please read the prospectus supplement relating to any original issue discount securities for the particular provisions relating
to acceleration of maturity thereof.
Any
past default under either indenture with respect to debt securities of any series, and any Event of Default arising therefrom,
may be waived by the holders of a majority in principal amount of all debt securities of such series outstanding under such indenture,
except in the case of (i) default in the payment of the principal of (or premium, if any) or interest on any debt securities of
such series or (ii) default in respect of a covenant or provision which may not be amended or modified without the consent of
the holder of each outstanding debt security of such series affected.
The
trustee shall within 90 days after the occurrence of a default (which is actually known to the trustee and is continuing), with
respect to the debt securities of any series (without regard to any grace period or notice requirements), to give to the holders
of the debt securities of such series notice of such default. The trustee may withhold from the holders notice of any continuing
Event of Default, except an Event of Default relating to the payment of principal, premium, if any, or interest, if it withholding
such notice would be in the interest of the holders.
The
trustee, subject to its duties during default to act with the required standard of care, may require indemnification by the holders
of the debt securities of any series with respect to which a default has occurred before proceeding to exercise any right or power
under the indentures at the request of the requisite holders of the debt securities of such series. Subject to such right of indemnification
and to certain other limitations, the holders of a majority in principal amount of the outstanding debt securities of any series
under either indenture may direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee with respect to the debt securities of such series, provided that such
direction shall not be in conflict with any rule of law or with the applicable indenture and the trustee may take any other action
deemed proper by the trustee which is not inconsistent with such direction.
No
holder of a debt security of any series may institute any action against us under either of the indentures (except actions for
payment of overdue principal of (and premium, if any) or interest on such debt security or for the conversion or exchange of such
debt security in accordance with its terms) unless:
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an
Event of Default has occurred and the holder has given to the trustee written notice
of an Event of Default and of the continuance thereof with respect to the debt securities
of such series specifying an Event of Default, as required under the applicable indenture;
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the
holders of at least 25% in aggregate principal amount of the debt securities of that
series then outstanding under such indenture shall have requested the trustee to institute
such action and offered to the trustee indemnity and security satisfactory to it against
the costs, expenses and liabilities to be incurred in compliance with such request;
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the
trustee shall not have instituted such action within 60 days of such request; and
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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 debt securities
of that series.
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We
are required to furnish annually to the trustee statements as to our compliance with all conditions and covenants under each indenture.
Discharge,
Defeasance and Covenant Defeasance
As
set forth below, we may discharge or defease our obligations under the indentures, unless otherwise indicated in the applicable
prospectus supplement.
We
may discharge certain obligations to holders of any series of debt securities issued under either the senior indenture or the
subordinated indenture which have not already been delivered to the trustee for cancellation and which have either become due
and payable or are by their terms due and payable within one year (or scheduled for redemption within one year) by irrevocably
depositing with the trustee money in an amount sufficient to pay and discharge the entire indebtedness on such debt securities
not previously delivered to the trustee for cancellation, for principal and any premium and interest to the date of such deposit
(in the case of debt securities which have become due and payable) or to the stated maturity or redemption date, as the case may
be, and we have paid all other sums payable under the applicable indenture.
If
indicated in the applicable prospectus supplement, we may elect either (i) to defease and be discharged from any and all obligations
with respect to the debt securities of or within any series (except as otherwise provided in the relevant indenture) (“legal
defeasance”) or (ii) to be released from our obligations with respect to certain covenants applicable to the debt securities
of or within any series (“covenant defeasance”), upon the deposit with the relevant indenture trustee, in trust for
such purpose, of money and/or government obligations which through the payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of (and premium, if any) or interest on such debt securities
to maturity or redemption, as the case may be, and any mandatory sinking fund or analogous payments thereon. As a condition to
legal defeasance or covenant defeasance, we must deliver to the trustee an opinion of counsel to the effect that the holders of
such debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such legal defeasance
or covenant defeasance and will be subject to federal income tax on the same amounts and in the same manner and at the same times
as would have been the case if such legal defeasance or covenant defeasance had not occurred. Such opinion of counsel, in the
case of legal defeasance under clause (i) above, must refer to and be based upon a ruling of the Internal Revenue Service or a
change in applicable federal income tax law occurring after the date of the relevant indenture. In addition, in the case of either
legal defeasance or covenant defeasance, we shall have delivered to the trustee an officers’ certificate and an opinion
of counsel, each stating that all conditions precedent with respect to such legal defeasance or covenant defeasance have been
complied with.
We
may exercise our legal defeasance option with respect to such debt securities notwithstanding our prior exercise of our covenant
defeasance option.
Modification
and Waiver
Under
each indenture, we and the applicable trustee may supplement the indenture for certain purposes which would not materially adversely
affect the interests or rights of the holders of debt securities of a series without the consent of those holders. We and the
applicable trustee may also modify the indenture or any supplemental indenture in a manner that affects the interests or rights
of the holders of debt securities with the consent of the holders of at least a majority in aggregate principal amount of the
outstanding debt securities of each affected series issued under the indenture. However, each indenture requires the consent of
each holder of debt securities that would be affected by any modification which would:
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change
the fixed maturity of any debt securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof;
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reduce
the amount of principal of an original issue discount debt security or any other debt
security payable upon acceleration of the maturity thereof;
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change
the currency in which any debt security or any premium or interest is payable;
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impair
the right to enforce any payment on or with respect to any debt security;
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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 or
for waiver of compliance with certain provisions of the indenture or for waiver of certain
defaults; or
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modify
any of the above provisions.
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Each
indenture permits the holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series
issued under the indenture which is affected by the modification or amendment to waive our compliance with certain covenants contained
in the indenture.
Payment
and Paying Agent
Unless
otherwise indicated in the applicable prospectus supplement:
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payment
of interest on a debt security on any interest payment date will be made to the person
in whose name a debt security is registered at the close of business on the record date
for the interest;
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principal,
interest and premium 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. Notwithstanding the foregoing, at our option, payment of any interest
may be made by check mailed to the address of the person entitled thereto as such address
appears in the security register;
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a
paying agent designated by us will act as paying agent for payments with respect to debt
securities of each series. All 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; and
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all
monies paid by us to a paying agent for the payment of the principal, interest or premium
on any debt security which remain unclaimed at the end of two years after such principal,
interest or premium has become due and payable will be repaid to us upon request, and
the holder of such debt security thereafter may look only to us for payment thereof.
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Denominations,
Registrations and Transfer
Unless
an accompanying prospectus supplement states otherwise, debt securities will be represented by one or more global certificates
registered in the name of a nominee for The Depository Trust Company, or DTC. In such case, each holder’s beneficial interest
in the global securities will be shown on the records of DTC or one of its participants and transfers of beneficial interests
will only be effected through DTC’s or such participant’s records.
A
holder of debt securities may only exchange a beneficial interest in a global security for certificated securities registered
in the holder’s name if:
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DTC
notifies us that it is unwilling or unable to continue serving as the depositary for
the relevant global securities or DTC ceases to maintain certain qualifications under
the Exchange Act and no successor depositary has been appointed for 90 days; or
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we
determine in our sole discretion, that the global security shall be exchangeable.
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If
debt securities are issued in certificated form, they will only be issued in the minimum denomination specified in the accompanying
prospectus supplement and integral multiples of such denomination. Transfers and exchanges of such debt securities will only be
permitted in such minimum denomination. Transfers of debt securities in certificated form may be registered at the trustee’s
corporate office or at the offices of any paying agent or trustee appointed by us under the applicable indenture. Exchanges of
debt securities for an equal aggregate principal amount of debt securities in different denominations may also be made at such
locations.
Governing
Law
Each
indenture and debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
Trustee
Wells
Fargo Bank, National Association will be the trustee under any senior debt securities indenture. Wells Fargo Bank, National Association
or another trustee may be appointed trustee under any subordinated debt securities indenture.
Conversion
or Exchange Rights
The
prospectus supplement will describe the terms, if any, on which a series of debt securities may be convertible into or exchangeable
for our common stock, preferred stock or other debt securities. These terms will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder, or at our option. These provisions may allow or require the number of shares
of our common stock or other securities to be received by the holders of such series of debt securities to be adjusted.
DESCRIPTION
OF CAPITAL STOCK
The
total number of shares of all classes of stock that we have authority to issue is 110,000,000, consisting of 100,000,000 shares
of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share. As of February
22, 2017, we had (i) 23,766,733 shares of common stock outstanding, (ii) 2,000 designated shares of Series A Convertible Preferred
Stock (the “Series A Preferred Stock”), none of which are outstanding, (iii) 600,000 designated shares of Series B
Redeemable Convertible Preferred Stock (the “Series B Preferred Stock”), 552,000 of which are outstanding, and (iv)
5,000 designated shares of Series C Preferred Stock (the “Series C Preferred Stock”), 453 of which are outstanding.
In
the discussion that follows, we have summarized selected provisions of our articles of incorporation, our bylaws and certificates
of designations relating to our capital stock. You should read our articles of incorporation and bylaws as currently in effect
for more details regarding the provisions we describe below and for other provisions that may be important to you. We have filed
copies of those documents with the Commission, and they are incorporated by reference as exhibits to the registration statement.
Please read “Where You Can Find More Information.”
Common
Stock
Holders
of our common stock: (i) are entitled to share ratably in all of our assets available for distribution upon liquidation, dissolution
or winding up of our affairs; (ii) do not have preemptive, subscription or conversion rights, nor are there any redemption or
sinking fund provisions applicable thereto; and (iii) are entitled to one vote per share on all matters on which stockholders
may vote at all stockholder meetings. Each stockholder is entitled to receive the dividends as may be declared by our directors
out of funds legally available for dividends. Our directors are not obligated to declare a dividend. Any future dividends will
be subject to the discretion of our directors and will depend upon, among other things, future earnings, the operating and financial
condition of our Company, our capital requirements, general business conditions and other pertinent factors.
The
presence of the persons entitled to vote 33% of the outstanding voting shares on a matter before the stockholders shall constitute
the quorum necessary for the consideration of the matter at a stockholders’ meeting.
The
vote of the holders of a majority of the votes cast on the matter at a meeting at which a quorum is present shall constitute an
act of the stockholders, except for the election of directors, who shall be appointed by a plurality of the shares entitled to
vote at a meeting at which a quorum is present. The common stock does not have cumulative voting rights, which means that the
holders of a majority of the common stock voting for election of directors can elect 100% of our directors if they choose to do
so.
Preferred
Stock
Subject
to the terms contained in any designation of a series of preferred stock, the Board of Directors is expressly authorized, at any
time and from time to time, to fix, by resolution or resolutions, the following provisions for shares of any class or classes
of preferred stock:
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1)
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The
designation of such class or series, the number of shares to constitute such class or series which may be increased (but not
below the number of shares of that class or series then outstanding) by a resolution of the Board of Directors;
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2)
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Whether
the shares of such class or series shall have voting rights, in addition to any voting rights provided by law, and if so,
the terms of such voting rights;
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3)
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The
dividends, if any, payable on such class or series, whether any such dividends shall be cumulative, and, if so, from what
dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends
shall bear to the dividends payable on any share of stock of any other class or any other shares of the same class;
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4)
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Whether
the shares of such class or series shall be subject to redemption by the Company, and, if so, the times, prices and other
conditions of such redemption or a formula to determine the times, prices and such other conditions;
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5)
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The
amount or amounts payable upon shares of such series upon, and the rights of the holders of such class or series in, the voluntary
or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Company;
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6)
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Whether
the shares of such class or series shall be subject to the operation of a retirement or sinking fund, and, if so, the extent
to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of
such class or series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof;
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7)
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Whether
the shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or any
other series of the same class or any other securities and, if so, the price or prices or the rate or rates of conversion
or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchanges;
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8)
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The
limitations and restrictions, if any, to be effective while any shares of such class or series are outstanding upon the payment
of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Company
of the common stock or shares of stock of any other class or any other series of the same class;
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9)
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The
conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issuance of any additional
stock, including additional shares of such class or series or of any other series of the same class or of any other class;
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10)
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The
ranking (be it pari passu, junior or senior) of each class or series vis-à-vis any other class or series of any class
of preferred stock as to the payment of dividends, the distribution of assets and all other matters;
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11)
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Facts
or events to be ascertained outside the articles of incorporation of the Company, or the resolution establishing the class
or series of stock, upon which any rate, condition or time for payment of distributions on any class or series of stock is
dependent and the manner by which the fact or event operates upon the rate, condition or time of payment; and
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12)
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Any
other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations
and restrictions thereof, insofar as they are not inconsistent with the provisions of our articles of incorporation, as amended,
to the full extent permitted by the laws of the State of Nevada.
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The
powers, preferences and relative, participating, optional and other special rights of each class or series of preferred stock,
and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any
time outstanding.
Series
A Convertible Preferred Stock
The
Series A Preferred Stock has no voting rights, no liquidation rights and no redemption rights, but has conversion rights providing
the holder thereof the right to convert each outstanding share of Series A Preferred Stock into 40 shares of common stock. The
Series A Preferred Stock contains a provision that limits the shares of common stock that the holder can own at any time upon
conversion to an aggregate of 4.99% of our then issued and outstanding shares of common stock.
Series
B Redeemable Convertible Preferred Stock
The
Series B Preferred Stock has dividend rights that accrue at an annual rate of 6% until such Series B Preferred is no longer outstanding
either due to conversion, redemption or otherwise. The Series B Preferred Stock also has liquidation rights equal to the original
issue price of such shares and are payable upon our liquidation, dissolution or winding up, either voluntary or involuntary. Each
outstanding share of Series B Preferred Stock is entitled to one vote on all stockholder matters to come before our stockholders
and are not entitled to series voting except as required by law.
Each
share of Series B Preferred Stock is convertible, at the option of the holder, into that number of fully-paid, nonassessable shares
of common stock determined by dividing the Original Issue Price for the Series B Preferred ($25.00, as may be adjusted for recapitalizations)
by the Conversion Price ($3.50, as may be adjusted for recapitalizations). Each share of Series B Preferred Stock automatically
converts into shares of common stock under certain conditions set forth in the certificate of designations for the Series B Preferred
Stock.
Subject
to the terms of any credit or debt agreements in place which prevent us from redeeming the Series B Preferred Stock for cash,
we have the option, exercisable from time to time after the Original Issue Date, to redeem all or any portion of the outstanding
shares of Series B Preferred Stock which have not been previously converted into common stock, by paying each applicable holder,
an amount equal to (a) the Original Issue Price multiplied by the number of shares of Series B Preferred Stock held by each applicable
holder, subject to such redemption; plus (b) the accrued dividends on such shares.
The
consent of a majority in interest of the Series B Preferred Stock must also be obtained prior to certain corporate actions.
Series
C Redeemable Convertible Preferred Stock
Holders
of the Series C Preferred Stock are entitled to cumulative dividends in the amount of 6.0% per annum, payable upon redemption,
conversion, or maturity, and when, as and if declared by our Board of Directors in its discretion. The Series C Preferred Stock
ranks senior to the common stock and pari passu with respect to our Series B Preferred Stock. The Series C Preferred Stock has
no right to vote on any matters, questions or proceedings of the Company including, without limitation, the election of directors
except: (a) during a period where a dividend (or part of a dividend) is in arrears; (b) on a proposal to reduce the Company’s
share capital; (c) on a resolution to approve the terms of a buy-back agreement; (d) on a proposal to wind up the Company; (e)
on a proposal for the disposal of all or substantially all the Company’s property, business and undertaking; and (f) during
the winding-up of the Company.
The
Series C Preferred Stock may be converted into shares of common stock at any time at the option of the holder. Upon
conversion, we will pay the holders of the Series C Preferred Stock being converted an amount, in cash or stock at our sole
discretion, equal to the dividends that such shares would have otherwise earned if they had been held through the maturity
date, and issue to the holders such number of shares of Common stock equal to $10,000 per share of Series C Preferred Stock
(the “Face Value”) multiplied by the number of such shares of Series C Preferred Stock divided by the applicable
Conversion Price (as defined in the certificate of designation for the Series C Preferred Stock).
The
conversion premium under the Series C Preferred Stock is payable and the dividend rate under the Series C Preferred Stock is adjustable
on the same terms and conditions as accrued interest is payable and adjustable under the Debenture described below. The Series
C Preferred Stock has a maturity date that is seven years after the date of issuance and, if the Series C Preferred Stock has
not been wholly converted into shares of common stock prior to such date, we may redeem the Series C Preferred Stock on such date
by repaying to the investor in cash 100% of the Face Value plus an amount equal to any accrued but unpaid dividends thereon. 100%
of the Face Value, plus an amount equal to any accrued but unpaid dividends thereon, automatically becomes payable in the event
of a liquidation, dissolution or winding up by us.
We
may not issue any other preferred stock that is pari passu or senior to the Series C
Preferred Stock with respect to any rights for a period of one year after the earlier of such date (i) a registration statement
is effective and available for the resale of all shares of common stock issuable upon conversion of the Series C Preferred Stock,
or (ii) Rule 144 under the Securities Act is available for the immediate unrestricted resale of all shares of common stock issuable
upon conversion of the Series C Preferred Stock.
Warrants
As
of February 22, 2017, we have a total of 1,367,560 warrants outstanding, which have various exercise prices between $0.01 and
$57.50 per share and various expiration dates between October 18, 2017 and April 21, 2021, as described in greater detail below.
In
April 2012, the Company sold an aggregate of 2,950,000 units at $2.00 each, with each unit consisting of one share of Company
common stock and 0.35 of a warrant to purchase one share of the Company’s common stock at an exercise price of $2.30 per
share in a registered direct offering. A total of 2,950,000 shares and 1,032,500 warrants were sold in connection with the offering
(one of the investors in the offering was an entity controlled by our former director, Joshua D. Young). The Company received
an aggregate of $5,900,000 (or $2.00 per unit) in gross funding and approximately $5,500,000 (or $1.87 per unit) in net proceeds
after paying commissions and other expenses associated with the offering. The Company used the net proceeds to pay down expenses
related to drilling, lease operating and workover activities; and for general corporate purposes, including general and administrative
expenses. The warrants became exercisable on October 18, 2012, and will remain exercisable thereafter until October 18, 2017.
If the registration statement pursuant to which the warrants were issued is not effective and available for use at the time of
any proposed exercise, the warrants have cashless exercise rights. The warrants also include a provision whereby the investors
are not eligible to exercise any portion of the warrants that would result in them becoming the beneficial owner of more than
4.99% of the Company’s common stock, subject to the holder’s right to increase such amount to up to 9.99% of the Company’s
common stock with at least 61 days prior written notice to the Company. As a result of our 25:1 reverse stock split, which was
effective on July 15, 2015, the outstanding warrants were adjusted such that 41,300 are outstanding as of February 22, 2017 at
an exercise price of $57.50 per share.
On
April 4, 2013, we entered into a Loan Agreement with various lenders (the “Loan Agreement”) pursuant to which such
lenders loaned the Company an aggregate of $2,750,000 to be used for general working capital. The lenders included entities beneficially
owned by our then directors, Ken Daraie (which entity loaned us $2,000,000) and W. Andrew Krusen, Jr. (which entities loaned us
$250,000), as well as an unrelated third party which loaned the Company $500,000. The outstanding principal and interest was paid
in full on August 16, 2013. The note holders were each paid their pro rata portion of a $55,000 commitment fee in connection with
the Company’s entry into the notes and were each granted their pro rata portion of warrants to purchase 275,000 shares of
the Company’s common stock which were evidenced by common stock purchase warrants. These warrants were originally issued
with an exercise price of $1.50 per share, a term of five years and cashless exercise rights in the event the shares issuable
upon exercise of the warrants are not registered with the. As a result of our 25:1 reverse stock split, which was effective on
July 15, 2015, the warrants were adjusted such that 11,000 are outstanding as of February 22, 2017 at an exercise price of $37.50
per share.
In
May 2013, we issued warrants in connection with the issuance of certain notes issued at that time, for which the outstanding principal
and interest was paid in full on August 16, 2013. The warrants were exercisable on the grant date (May 31, 2013) and remain exercisable
until May 31, 2018. As a result of our 25:1 reverse stock split, which was effective on July 15, 2015, the warrants were adjusted
such that 2,000 are outstanding as of February 22, 2017 at an exercise price of $37.50 per share.
On August 13, 2013, we entered into a Letter Loan Agreement with Louise H. Rogers (as amended and modified to date, the “Rogers
Loan”). In connection with the Rogers Loan and a Promissory Note entered into in connection therewith, the Company issued
certain warrants. Such warrants were exercisable on the grant date (August 13, 2013) and remain exercisable until the earlier
of (a) August 13, 2018; and (b) three years after the payment in full of the loan. The exercise price of such warrants was lowered
to $0.01 per share on August 12, 2015. As a result of our 25:1 reverse stock split, which was effective on July 15, 2015, the
warrants were adjusted such that 11,195 are outstanding as of February 22, 2017.
Warrants
were also issued by the Company in connection with the sale of units in the Company’s unit offering in April 2014. The warrants
became exercisable on April 21, 2014 and will remain exercisable thereafter until April 21, 2019. As a result of our 25:1 reverse
stock split, which was effective on July 15, 2015, the warrants were adjusted such that 66,668 are outstanding as of February
22, 2017 at an exercise price of $25.00 per share. As a result of the issuance of the Debenture and related warrant, the issuance
of the convertible promissory notes and the closing of the Acquisition, the exercise price of these warrants was adjusted to $3.59
per share.
In
connection with a Convertible Promissory Note Purchase Agreement (the “Note Purchase Agreement”), entered into on
March 29, 2016 and effective March 11, 2016, between the Company and HFT Enterprises, LLC (“HFT”), we have issued
to HFT warrants to purchase 124,285 shares of common stock with an exercise price of $1.50 per share.
We
also issued the Second Warrant (the “Second Warrant”) in connection with the Stock Purchase Agreement entered into
on April 6, 2016 (the “Stock Purchase Agreement”), which entitles the investor, upon exercise thereof, to purchase
1,111,112 shares of common stock at a purchase price of $4.50 per share. The Second Warrant will be exercisable before March 31,
2017 by the investor upon delivery of notice from the investor.
The
Second Warrant accrues a premium at a rate equal to 6.0% per annum, subject to adjustment as provided in the Second Warrant, payable
upon redemption or exercise. Upon exercise of the Second Warrant, we will pay the conversion premium that would have otherwise
been due if the Second Warrant had been held through the maturity date, with respect to the portion of the Second Warrant being
exercised. The Second Warrant may not be exercised on a cashless basis.
The
conversion premium under the Second Warrant is payable and adjustable on the same terms and conditions as accrued interest is
payable and adjustable under the Debenture described herein, except that the conversion premium triggering levels for the
Second Warrant are set at $4.00 and $5.00, respectively. The Second Warrant has a maturity date that is seven years after the
date of issuance and, if the Second Warrant has not been wholly exercised into shares of common stock prior to such date, we may
redeem the Second Warrant on such date by repaying to the investor in cash the purchase price paid under the Second Warrant. The
purchase price paid under the Second Warrant, together with the conversion premium, automatically becomes payable with respect
to the unexercised portion of the Second Warrant in the event of a liquidation, dissolution or winding up by us. Prior to the
maturity date, provided that no trigger event has occurred (as defined in the Second Warrant), we have the right at any time upon
30 trading days’ prior written notice to redeem all or any portion of the Second Warrant then unexercised by paying the
investor in cash an amount per portion of unexercised warrant equal to the purchase price paid under the Second Warrant, plus
the conversion premium payable as if such portion was unexercised until the maturity date, minus any conversion premium already
paid for such portion.
In
connection with various exercises of the First Warrant issued pursuant to Stock Purchase Agreement (the
“First Warrant”) to date, we have issued a total of 5,000,000 shares of common stock, and the remaining 2,722,815
shares, as may be adjusted, of common stock for the exercise and payment of conversion premium under the First Warrant are
being held in abeyance until such time as it would not result in the investor exceeding its beneficial ownership
limitation.
Stock
Options
As
of February 22, 2017, we had issued and outstanding stock options to purchase an aggregate of 19,920 shares of common stock (net
of forfeitures, expirations and cancellations) pursuant to our 2010 Long-Term Incentive Plan, 2012 Stock Incentive Plan and 2014
Amended and Restated Stock Incentive Plan. The stock options have a weighted average exercise price of $35.38 per share.
Convertible
Redeemable Subordinated Debenture
On
April 6, 2016, we entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with an accredited
institutional investor, pursuant to which we sold and issued a redeemable convertible subordinated debenture, with a face amount
of $530,000, convertible into 163,077 shares of common stock at a conversion price equal to $3.25 per share (the “Debenture”).
The investor purchased the Debenture at a 5.0% original issue discount for the sum of $500,000.
The
Debenture matures in seven years and accrues interest at a rate of 6.0% per annum, subject to adjustment as provided in the Debenture.
The Debenture may be converted into shares of common stock at $3.25 per share in the sole and absolute discretion of investor
at any time or times after issuance. Upon conversion of the Debenture, we will pay a conversion premium equal to the amount of
unpaid interest that would have otherwise been due if the Debenture had been held through the maturity date, with respect to the
portion of Debenture being converted.
Accrued
interest under the Debenture is payable upon conversion, redemption or maturity of the Debenture, in cash or, at our discretion,
shares of common stock calculated by using 95% of the average of the lowest 5 individual daily volume weighted average prices
during the measuring period, not to exceed 100% of the lowest sales prices on the last day of such period, less $0.05 per share
of common stock. Following a trigger event (as defined in the Debenture), the number of shares to be issued will be calculated
by using 85% of the lowest daily volume weighted average price during the measuring period, less $0.10 per share of common stock
not to exceed 85% of the lowest sales prices on the last day of such period less $0.10 per share. A trigger event occurred on
June 30, 2016 as a result of the delay in filing our Annual Report on Form 10-K for the year ended March 31, 2016.
The
interest rate on the Debenture will adjust upward by 100 basis points for each $0.10 that the volume weighted average price of
our common stock on any trading day as of which the interest rate is determined and calculated is below $2.75, subject to a maximum
interest rate of 24.95%. The interest rate also will adjust upward by 10.0% following the occurrence of any trigger event. The
interest rate on the Debenture will adjust downward by 100 basis points for each $0.10 that the volume weighted average price
of our common stock on any trading day as of which the interest rate is determined and calculated is above $3.75, subject to a
minimum interest rate of 0%.
To
the extent the Debenture has not been converted in full into shares of common stock prior to the maturity date, the face value
of the outstanding Debenture, together with all interest accrued thereunder, is payable in cash by us on the maturity date. The
outstanding Debenture, together with accrued and unpaid interest, automatically becomes payable in the event of a deemed liquidation
event (as defined in the Debenture).
Restrictions
on Change of Control
Articles
of Incorporation and Bylaws
The
following provisions of our Articles of Incorporation and our Bylaws, as amended and restated, and applicable provisions of Nevada
law may make a change of control of us more difficult and may delay stockholder actions with respect to business combinations
and the election of new members to our Board of Directors:
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Limiting
the number of our directors to ten;
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Limiting
the persons who may call special meetings of stockholders to the Board of Directors, the Chairman of the Board of Directors,
a committee of the Board of Directors duly designated and whose power and authority includes the power to call a special meeting
of the stockholders at any time for any purpose, or by the record holder or holders of at least 10% of all shares entitled
to vote at the proposed special meeting;
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Limiting
the business that may be acted on at a special meeting of the stockholders to the matters set forth in the notice of the meeting;
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Requiring
the approval of not less than two-thirds of the outstanding shares entitled to vote at an election of the directors to remove
members of the Board of Directors;
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Requiring
that any action of the stockholders to be taken without a meeting must be authorized by a consent and signed by persons having
at not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted;
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Requiring
that any proposed amendment to our Articles of Incorporation that would alter or change any preference or any relative or
other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition
to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class
or series affected by the amendment regardless of limitations or restrictions on the voting power thereof; and
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Authorizing
our Board of Directors, subject to any limitations presented by law, to provide for the issuance of shares of our preferred
stock in one or more series (with such preferences and rights as described above under “Preferred Stock”.
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Nevada
Corporation Law
Sections
78.378-78.3793 of the Nevada Revised Statutes apply to any acquisition of a controlling interest in an issuing corporation unless
the articles of incorporation or bylaws of the corporation in effect on the tenth day following the acquisition of a controlling
interest by an acquiring person provide that the provisions of those sections do not apply to the corporation, or to an acquisition
of a controlling interest specifically by types of existing or future stockholders, whether or not identified. A person desiring
to acquire a controlling interest in an issuing corporation must do so in accordance with the provisions of Sections 78.378-78.3793
of the Nevada Revised Statutes.
In
general, Sections 78.378-78.3793 set forth the procedures for an acquiring person to obtain a controlling interest in an issuing
corporation. The securities acquired in such acquisition are denied voting rights unless holders of a majority of the voting power
of the corporation approve the granting of such voting rights, and, if the acquisition would adversely alter or change any preference
or any relative or other right given to any other class or series of outstanding shares, the holders of a majority of each class
or series affected approve the granting of such voting rights.
The
provisions of Sections 78.378-78.3793 of the Nevada Revised Statutes do not restrict the directors of an issuing corporation from
taking action to protect the interests of the corporation and its stockholders including, but not limited to, adopting or signing
plans, arrangements or instruments that deny rights, privileges, power or authority to a holder of a specified number of shares
or percentage of share ownership or voting power.
“
Controlling
interest
” means the ownership of outstanding voting shares of an issuing corporation sufficient, but for the provisions
of Section 78.378 to 78.3793, inclusive, to enable the acquiring person, directly or indirectly and individually or in association
with others, to exercise 1) 1/5 or more but less than 1/3, 2) 1/3 or more but less than a majority, or 3) a majority or more,
of all the voting power of the corporation in the election of directors.
“
Issuing
corporation
” means a corporation which is organized in Nevada and which 1) has 200 or more stockholders of record, at
least 100 of whom have addresses in Nevada appearing on the stock ledger of the corporation; and 2) does business in Nevada directly
or through an affiliated corporation.
The
Company’s Bylaws, as amended and restated, provide that the Company is not governed by the provisions of Section 78.378
to 78.3793, inclusive, of the Nevada Revised Statues, and such sections do not therefore apply to the Company or to an acquisition
of a controlling interest by any stockholder of the Company.
Sections
78.411-78.444 of the Nevada Revised Statutes apply to certain combinations of the corporation with interested stockholders.
In
general, Section 78.438 prohibits a Nevada corporation from engaging in any business combination with any interested stockholder
for a period of two years following the date that the stockholder became an interested stockholder unless (1) the Board of Directors
of the corporation approved the business combination prior to the date the person became an interested stockholder or (2) the
combination is approved by the board of directors of the corporation and, at or after that time, the combination is approved at
an annual or special meeting of the stockholders of the corporation, and not by written consent, by the affirmative vote of the
holders of stock representing at least 60 percent of the outstanding voting power of the corporation not beneficially owned by
the interested stockholder or the affiliates or associates of the interested stockholder.
In
general, Section 78.439 provides that business combinations after the two-year period following the date that the stockholder
becomes an interested stockholder may also be prohibited unless (1) approved by the corporation’s directors before the person
became an interested stockholder, (2) the combination is approved by a majority of the outstanding voting power of the corporation
not beneficially owned by the interested stockholder or any affiliate or associate of the interested stockholder or (3) the price
and terms of the transaction meet the criteria set forth in the statute.
“
Combination
”
means any of the following:
1)
Any merger or consolidation of the resident domestic corporation or any subsidiary of the resident domestic corporation with:
(a)
the interested stockholder; or
(b)
any other entity, whether or not itself an interested stockholder of the resident domestic corporation, which is, or after the
merger or consolidation would be, an affiliate or associate of the interested stockholder.
2)
Any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions, to
or with the interested stockholder or any affiliate or associate of the interested stockholder of transactions, to or with the
interested stockholder or any affiliate or associate of the interested corporation of assets of the resident domestic corporation
or any subsidiary of the resident domestic corporation:
(a)
having an aggregate market value more than 5% of the aggregate market value of all the assets, determined on a consolidated basis,
of the resident domestic corporation;
(b)
having an aggregate market value more than 5% of the aggregate market value of all the outstanding voting shares of the resident
domestic corporation; or
(c)
representing more than 10% of the earning power or net income, determined on a consolidated basis, of the resident domestic corporation.
3)
The issuance or transfer by the resident domestic corporation or any subsidiary of the resident domestic corporation, in one transaction
or a series of transactions, of any shares of the resident domestic corporation or any subsidiary of the resident domestic corporation
that have an aggregate market value equal to 5% or more of the aggregate market value of all the outstanding shares of the resident
domestic corporation to the interested stockholder or any affiliate or associate of the interested stockholder except under the
exercise of warrants or rights to purchase shares offered, or a dividend or distribution paid or made, pro rata to all stockholders
of the resident domestic corporation.
4)
The adoption of any plan or proposal for the liquidation or dissolution of the resident domestic corporation proposed by, or under
any agreement, arrangement or understanding, whether or not in writing with, the interested stockholder or any affiliate or associate
of the interested stockholder.
5)
Except for any transaction or series of transactions that would not constitute a combination pursuant to subsection 3 above, any:
(a)
reclassification of securities, including, without limitation, any splitting of shares, dividend distributed in shares, or other
distribution of shares with respect to other shares, or any issuance of new shares in exchange for a proportionately greater number
of old shares;
(b)
recapitalization of the resident domestic corporation;
(c)
merger or consolidation of the resident domestic corporation with any subsidiary of the resident domestic corporation; or
(d)
other transaction, whether or not with or into or otherwise involving the interested stockholder,
under
any agreement, arrangement or understanding, whether or not in writing, with the interested stockholder or any affiliate or associate
of the interested stockholder, which has the immediate and proximate effect of increasing the proportionate share of the outstanding
shares of any class or series of voting shares or securities convertible into voting shares of the resident domestic corporation
or any subsidiary of the resident domestic corporation which is beneficially owned by the interested stockholder or any affiliate
or associate of the interested stockholder, except as a result of immaterial changes because of adjustments of fractional shares.
6)
Any receipt by the interested stockholder or any affiliate or associate of the interested stockholder of the benefit, directly
or indirectly, except proportionately as a stockholder of the resident domestic corporation, of any loan, advance, guarantee,
pledge or other financial assistance or any tax credit or other tax advantage provided by or through the resident domestic corporation.
“
Interested
stockholder
” means any person, other than the resident domestic corporation or any subsidiary of the resident domestic
corporation, who is:
1)
the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting shares of the resident
domestic corporation; or
2)
an affiliate or associate of the resident domestic corporation and at any time within two years immediately before the date in
question was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding shares of
the resident domestic corporation.
To
determine whether a person is an interested stockholder, the number of voting shares of the resident domestic corporation considered
to be outstanding includes shares considered to be beneficially owned by that person through the application of Section 78.414
of the Nevada Revised Statutes, but does not include any other unissued shares of a class of voting shares of the resident domestic
corporation which may be issuable to any person, other than the interested stockholder and its affiliates and associates, under
any agreement, arrangement or understanding, or upon exercise of rights to convert, warrants or options, or otherwise.
Listing
Our
common stock is listed for quotation on the NYSE MKT under the symbol “CEI.”
Transfer
Agent and Registrar
Clear
Trust, LLC is transfer agent and registrar for our common stock.
DESCRIPTION
OF DEPOSITARY SHARES
General
We
may, at our option, elect to have shares of preferred stock be represented by depositary shares. The shares of any series of the
preferred stock underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or
trust company selected by us as the depositary. Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable interest in the number of shares of preferred stock underlying such depositary
share, to all the rights and preferences of the preferred stock underlying such depositary share, including dividend, voting,
redemption, conversion, exchange and liquidation rights.
The
depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement, each of which will represent
the applicable interest in a number of shares of a particular series of the preferred stock described in the applicable prospectus
supplement.
Unless
otherwise specified in this prospectus supplement, a holder of depositary shares is not entitled to receive the shares of preferred
stock underlying the depositary shares.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions received in respect of the preferred stock to the record
holders of depositary shares representing such preferred stock in proportion to the numbers of such depositary shares owned by
such holders on the relevant record date.
In
the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of
depositary shares entitled thereto or the depositary may, with our approval, sell such property and distribute the net proceeds
from such sale to such holders.
Redemption
of Depositary Shares
If
preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds
received by the depositary resulting from the redemption, in whole or in part, of the preferred stock held by the depositary.
The redemption price per depositary share will be equal to the aggregate redemption price payable with respect to the number of
shares of preferred stock underlying the depositary shares. Whenever we redeem preferred stock from the depositary, the depositary
will redeem as of the same redemption date a proportionate number of depositary shares representing the shares of preferred stock
that were redeemed. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected
by lot, pro rata or by another equitable method as may be determined by us.
After
the date fixed for redemption, the depositary shares so called for redemption will no longer be deemed to be outstanding and all
rights of the holders of the depositary shares will cease, except the right to receive the redemption price payable upon such
redemption. Any funds deposited by us with the depositary for any depositary shares which the holders thereof fail to redeem shall
be returned to us after a period of two years from the date such funds are so deposited.
Voting
Upon
receipt of notice of any meeting or action in lieu of any meeting at which the holders of any shares of preferred stock underlying
the depositary shares are entitled to vote, the depositary will mail the information contained in such notice to the record holders
of the depositary shares relating to such preferred stock. Each record holder of such depositary shares on the record date (which
will be the same date as the record date for the preferred stock) will be entitled to instruct the depositary as to the exercise
of the voting rights pertaining to the number of shares of preferred stock underlying such holder’s depositary shares. The
depositary will endeavor, insofar as practicable, to vote the number of shares of preferred stock underlying such depositary shares
in accordance with such instructions, and we will agree to take all action which may be deemed necessary by the depositary in
order to enable the depositary to do so.
Amendment
of the Depositary Agreement
The
form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at any time be amended
by agreement between us and the depositary, provided, however, that any amendment which materially and adversely alters the rights
of the existing holders of depositary shares will not be effective unless such amendment has been approved by at least a majority
of the depositary shares then outstanding.
Charges
of Depositary
We
will pay all transfer and other taxes and governmental charges that arise solely from the existence of the depositary arrangements.
We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any exchange or redemption
of the preferred stock. Holders of depositary shares will pay all other transfer and other taxes and governmental charges, and,
in addition, such other charges as are expressly provided in the deposit agreement to be for their accounts.
Miscellaneous
We,
or at our option, the depositary, will forward to the holders of depositary shares all reports and communications from us which
we are required to furnish to the holders of preferred stock.
Neither
the depositary nor we will be liable if either of us is prevented or delayed by law or any circumstances beyond our control in
performing our obligations under the deposit agreement. Our obligations and those of the depositary under the deposit agreement
will be limited to performance in good faith of our duties thereunder and we and the depositary will not be obligated to prosecute
or defend any legal proceeding in respect of any depositary share or preferred stock unless satisfactory indemnity has been furnished.
We and the depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting preferred
stock for deposit, holders of depositary shares or other persons believed to be competent and on documents believed to be genuine.
Resignation
and Removal of Depositary; Termination of the Deposit Agreement
The
depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the depositary,
any such resignation or removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment.
Such successor depositary will be appointed by us within 60 days after delivery of the notice of resignation or removal. The deposit
agreement may be terminated at our direction or by the depositary if a period of 90 days has expired after the depositary has
delivered to us written notice of its election to resign and a successor depositary has not been appointed. Upon termination of
the deposit agreement, the depositary will discontinue the transfer of depositary receipts, will suspend the distribution of dividends
to the holders thereof, and will not give any further notices (other than notice of such termination) or perform any further acts
under the deposit agreement except that the depositary will continue to deliver preferred stock certificates, together with such
dividends and distributions and the net proceeds of any sales of rights, preferences, privileges or other property in exchange
for depositary receipts surrendered. Upon our request, the depositary shall deliver all books, records, certificates evidencing
preferred stock, depositary receipts and other documents relating to the subject matter of the depositary agreement to us.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase debt securities, common stock, preferred stock, depositary shares, subscription rights, purchase
contracts or units that are registered pursuant to the registration statement to which this prospectus relates. We may issue warrants
independently or together with other securities that are registered pursuant to the registration statement to which this prospectus
relates. Warrants sold with other securities may be attached to or separate from the other securities. We will issue each series
of warrants under a separate warrant agreement between us and a warrant agent that we will name in the prospectus supplement.
We will describe additional terms of the warrants and the applicable warrant agreements in the applicable prospectus supplement.
General
If
warrants are offered, the prospectus supplement relating to a series of warrants will include the specific terms of the warrants,
including:
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the
title of the warrants;
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the
aggregate number of warrants offered;
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the
dates or periods during which the warrants can be exercised;
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whether
the warrants will be issued in individual certificates to holders or in the form of global
securities held by a depositary on behalf of holders;
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the
designation and terms of any securities with which the warrants are issued;
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if
the warrants are issued as a unit with another security, the date, if any, on and after
which the warrants and the other security will be separately transferable;
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if
the exercise price is not payable in U.S. dollars, the foreign currency, currency unit
or composite currency in which the exercise price is denominated;
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any
terms, procedures and limitations relating to the transferability, exchange or exercise
of the warrants;
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any
special tax implications of the warrants or their exercise;
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any
anti-dilution provisions of the warrants;
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any
redemption or call provisions applicable to the warrants; and
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any
other terms of the warrants.
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Transfers
and Exchanges
A
holder will be able to exchange warrant certificates for new warrant certificates of different denominations, or to transfer warrants,
at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to exercise,
holders of warrants will have none of the rights of holders of the underlying securities.
Exercise
Holders
will be able to exercise warrants up to 5:00 P.M. New York City time on the date set forth in the prospectus supplement as the
expiration date.
After
this time, unless we have extended the expiration date, the unexercised warrants will be void.
Subject
to any restrictions and additional requirements that may be set forth in a prospectus supplement, holders of warrants may exercise
them by delivering to the warrant agent at its corporate trust office the following:
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warrant
certificates properly completed; and
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payment
of the exercise price.
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As
soon as practicable after the delivery, we will issue and deliver to the indicated holder the securities purchasable upon exercise.
If a holder does not exercise all the warrants represented by a particular certificate, we will also issue a new certificate for
the remaining number of warrants.
No
Rights of Security Holder Prior to Exercise
Prior
to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable
upon the exercise of the warrants, and will not be entitled to:
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in
the case of warrants to purchase debt securities, payments of principal of, premium,
if any, or interest, if any, on the debt securities purchasable upon exercise; or
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in
the case of warrants to purchase equity securities, the right to vote or to receive dividend
payments or similar distributions on the securities purchasable upon exercise.
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Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the relevant warrant agreement and will not assume any obligation or relationship
of agency or trust for any warrant holder. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility if we default in performing our obligations under the relevant warrant
agreement or warrant, including any duty or responsibility to initiate any legal proceedings or to make any demand upon us.
Title
We
and the warrant agents and any of our respective agents may treat the registered holder of any warrant certificate as the absolute
owner of the warrants evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching
to the warrants so requested, despite any notice to the contrary.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase common stock, preferred stock, depositary shares, warrants, other securities described
in this prospectus or any combination thereof. These subscription rights may be issued independently or together with any other
security offered by us and may or may not be transferable by the security holder receiving the subscription rights in such offering.
In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters
or other investors pursuant to which the underwriters or other investors may be required to purchase any securities remaining
unsubscribed for after such offering.
To
the extent appropriate, the applicable prospectus supplement will describe the specific terms of the subscription rights to purchase
shares of our securities offered thereby, including the following:
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the
date of determining the security holders entitled to the subscription rights distribution;
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the
price, if any, for the subscription rights;
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the
exercise price payable for the common stock, preferred stock, depositary shares or other
securities upon the exercise of the subscription right;
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the
number of subscription rights issued to each security holder;
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the
amount of common stock, preferred stock, depositary shares or other securities that may
be purchased per each subscription right;
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any
provisions for adjustment of the amount of securities receivable upon exercise of the
subscription rights or of the exercise price of the subscription rights;
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the
extent to which the subscription rights are transferable;
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the
date on which the right to exercise the subscription rights shall commence, and the date
on which the subscription rights shall expire;
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the
extent to which the subscription rights may include an over-subscription privilege with
respect to unsubscribed securities;
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the
material terms of any standby underwriting or purchase arrangement entered into by us
in connection with the offering of subscription rights;
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any
applicable federal income tax considerations; and
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any
other terms of the subscription rights, including the terms, procedures and limitations
relating to the transferability, exchange and exercise of the subscription rights.
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DESCRIPTION
OF PURCHASE CONTRACTS
We
may issue purchase contracts obligating holders to purchase from us, and us to sell to the holders, a specified number, or amount,
of securities at a future date or dates. The purchase contracts may be issued separately or as part of units consisting of a purchase
contract and an underlying security covered by this prospectus, U.S. Treasury security or other U.S. government or agency obligation.
The holder of the unit may be required to pledge the security, U.S. Treasury security or other U.S. government or agency obligation
to secure its obligations under the purchase contract.
If
purchase contracts are offered, the prospectus supplement will specify the material terms of the purchase contracts, the units
and any applicable pledge or depository arrangements, including one or more of the following:
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the
stated amount that a holder will be obligated to pay under the purchase contract in order
to purchase the underlying security;
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the
settlement date or dates on which the holder will be obligated to purchase the underlying
security and whether the occurrence of any events may cause the settlement date to occur
on an earlier date and the terms on which any early settlement would occur;
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the
events, if any, that will cause our obligations and the obligations of the holder under
the purchase contract to terminate;
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the
settlement rate, which is a number that, when multiplied by the stated amount of a purchase
contract, determines the number, or amount, of securities that we will be obligated to
sell and a holder will be obligated to purchase under that purchase contract upon payment
of the stated amount of that purchase contract;
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whether
the purchase contracts will be issued separately or as part of units consisting of a
purchase contract and an underlying security with an aggregate principal amount or liquidation
amount equal to the stated amount;
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the
type of security, if any, that is pledged by the holder to secure its obligations under
a purchase contract;
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the
terms of the pledge arrangement relating to the security, including the terms on which
distributions or payments of interest and principal on the security will be retained
by a collateral agent, delivered to us or be distributed to the holder; and
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the
amount of the contract fee, if any, that may be payable by us to the holder or by the
holder to us, the date or dates on which the contract fee will be payable and the extent
to which we or the holder, as applicable, may defer payment of the contract fee on those
payment dates.
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DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, preferred
stock, warrants, debt securities, subscription rights, purchase contracts, or any combination of such securities, including guarantees
of non-convertible debt securities. The applicable prospectus supplement will describe:
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the
securities comprising the units, including whether and under what circumstances the securities
comprising the units may be separately traded;
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the
terms and conditions applicable to the units, including a description of the terms of
any applicable unit agreement governing the units; and
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a
description of the provisions for the payment, settlement, transfer or exchange of the
units.
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GLOBAL
SECURITIES
We
may issue the debt securities, warrants, purchase contracts and units of any series in the form of one or more fully registered
global securities that will be deposited with a depositary or with a nominee for a depositary and registered in the name of the
depositary or its nominee. In that case, one or more global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of outstanding registered securities of the series to be represented
by such global securities. Unless and until the depositary exchanges a global security in whole for securities in definitive registered
form, the global security may not be transferred except as a whole by the depositary to a nominee of the depositary or by a nominee
of the depositary to the depositary or another nominee of the depositary or by the depositary or any of its nominees to a successor
of the depositary or a nominee of such successor.
The
specific terms of the depositary arrangement with respect to any portion of a series of securities to be represented by a global
security will be described in the prospectus supplement relating to such series. We anticipate that the following provisions will
apply to all depositary arrangements.
Ownership
of beneficial interests in a global security will be limited to persons that have accounts with the depositary for such global
security known as “participants” or persons that may hold interests through such participants.
Upon
the issuance of a global security, the depositary for such global security will credit, on its book-entry registration and transfer
system, the participants’ accounts with the respective principal or face amounts of the securities represented by the global
security beneficially owned by the participants. The accounts to be credited shall be designated by any dealers, underwriters
or agents participating in the distribution of such securities.
Ownership
of beneficial interests in such global security will be shown on, and the transfer of such ownership interests will be effected
only through, records maintained by the depositary for such global security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding through participants). The laws of some states may require
that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws
may impair the ability to own, transfer or pledge beneficial interests in global securities.
So
long as the depositary for a global security, or its nominee, is the registered owner of such global security, such depositary
or such nominee, as the case may be, will be considered the sole owner or holder of the securities represented by such global
security for all purposes under the applicable indenture, warrant agreement, purchase contract or unit agreement. Except as set
forth below, owners of beneficial interests in a global security will not be entitled to have the securities represented by such
global security registered in their names, will not receive or be entitled to receive physical delivery of such securities in
definitive form and will not be considered the owners or holders thereof under the applicable indenture, warrant agreement, purchase
contract or unit agreement. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures
of the depositary for the global security and, if such person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement, purchase
contract or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an
owner of a beneficial interest in a global security desires to give or take any action which a holder is entitled to give or take
under the applicable indenture, warrant agreement, purchase contract or unit agreement, the depositary for such global security
would authorize the participants holding the relevant beneficial interests to give or take such action, and such participants
would authorize beneficial owners owning through such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, purchase contracts
or units represented by a global security registered in the name of a depositary or its nominee will be made to such depositary
or its nominee, as the case may be, as the registered owner of such global security. None of us, the trustees, the warrant agents,
the unit agents or any of our other agents, agent of the trustees or agent of the warrant agents or unit agents will have any
responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests
in such global security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
We
expect that the depositary for any securities represented by a global security, or its nominee, upon receipt of any payment of
principal, premium, interest or other distribution of underlying securities or commodities to holders in respect of such global
security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests
in such global security as shown on the records of such depositary or its nominee. We also expect that payments by participants
to owners of beneficial interests in such global security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form
or registered in “street name,” and will be the responsibility of such participants.
If
the depositary for any securities represented by a global security is at any time unwilling or unable to continue as depositary
or ceases to be a clearing agency registered under the Exchange Act, and we do not appoint a successor depositary registered as
a clearing agency under the Exchange Act within 90 days, we will issue such securities in definitive form in exchange for such
global security. In addition, we may at any time and in our sole discretion determine not to have any of the securities of a series
represented by one or more global securities and, in such event, will issue securities of such series in definitive form in exchange
for all of the global security or securities representing such securities. Any securities issued in definitive form in exchange
for a global security will be registered in such name or names as the depositary shall instruct the relevant trustee, warrant
agent or other relevant agent of ours. We expect that such instructions will be based upon directions received by the depositary
from participants with respect to ownership of beneficial interests in such global security.
PLAN
OF DISTRIBUTION
We
may sell our securities from time to time through underwriters, dealers or agents or directly to purchasers, in one or more transactions
at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. We may also sell our securities upon the exercise of subscription rights that
may be distributed to security holders. We may use these methods in any combination.
We
will describe the terms of the offering of the securities in a prospectus supplement, information incorporated by reference or
any related free writing prospectus, including:
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the
name or names of any underwriters, if any;
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the
purchase price of the securities and the proceeds we will receive from the sale;
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any
underwriting discounts and other items constituting underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers; and
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any
securities exchange or market on which the securities may be listed.
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Only
underwriters we name in the prospectus supplement, information incorporated by reference or related free writing prospectus are
underwriters of the securities offered thereby.
The
distribution of securities may be effected, from time to time, in one or more transactions, including:
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block
transactions (which may involve crosses) and transactions on the NYSE MKT or any other
organized market where the securities may be traded;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant
to a prospectus supplement;
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers;
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sales
“at the market” to or through a market maker or into an existing trading
market, on an exchange or otherwise; and
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sales
in other ways not involving market makers or established trading markets, including direct
sales to purchasers.
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By
Underwriters
We
may use an underwriter or underwriters in the offer or sale of our securities.
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If
we use an underwriter or underwriters, the offered securities will be acquired by the
underwriters for their own account.
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We
will include the names of the specific managing underwriter or underwriters, as well
as any other underwriters, and the terms of the transactions, including the compensation
the underwriters and dealers will receive, in the prospectus supplement.
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The
underwriters will use this prospectus and the prospectus supplement to sell our securities.
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We
may also sell securities pursuant to one or more standby agreements with one or more underwriters in connection with the call,
redemption or exchange of a specified class or series of any of our outstanding securities. In a standby agreement, the underwriter
or underwriters would agree either:
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to
purchase from us up to the number of shares of common stock that would be issuable upon
conversion or exchange of all the shares of the class or series of our securities at
an agreed price per share of common stock; or
|
|
|
●
|
to
purchase from us up to a specified dollar amount of offered securities at an agreed price
per offered security, which price may be fixed or may be established by formula or other
method and which may or may not relate to market prices of our common stock or any other
outstanding security.
|
The
underwriter or underwriters would also agree, if applicable, to convert or exchange any securities of the class or series held
or purchased by the underwriter or underwriters into or for our common stock or other security.
The
underwriter or underwriters may assist in the solicitation of conversions or exchanges by holders of the class or series of securities.
By
Dealers
We
may use a dealer to sell our securities.
|
|
●
|
If
we use a dealer, we, as principal, will sell our securities to the dealer.
|
|
|
●
|
The
dealer will then resell our securities to the public at varying prices that the dealer
will determine at the time it sells our securities.
|
|
|
●
|
We
will include the name of the dealer and the terms of our transactions with the dealer
in the prospectus supplement.
|
If
we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting
agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities
they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager
to manage a subscription rights offering for us.
By
Agents
We
may designate agents to solicit offers to purchase our securities.
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|
●
|
We
will name any agent involved in offering or selling our securities and any commissions
that we will pay to the agent in the prospectus supplement.
|
|
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●
|
Unless
we indicate otherwise in the prospectus supplement, our agents will act on a best efforts
basis for the period of their appointment.
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|
|
●
|
Our
agents may be deemed to be underwriters under the Securities Act of any of our securities
that they offer or sell.
|
By
Delayed Delivery Contracts
We
may authorize our agents and underwriters to solicit offers by certain institutions to purchase our securities at the public offering
price under delayed delivery contracts.
|
|
●
|
If
we use delayed delivery contracts, we will disclose that we are using them in the prospectus
supplement and will tell you when we will demand payment and delivery of the securities
under the delayed delivery contracts.
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|
|
●
|
These
delayed delivery contracts will be subject only to the conditions that we set forth in
the prospectus supplement.
|
|
|
●
|
We
will indicate in the prospectus supplement the commission that underwriters and agents
soliciting purchases of our securities under delayed delivery contracts will be entitled
to receive.
|
Direct
Sales
We
may directly solicit offers to purchase our securities, and we may directly sell our securities to institutional or other investors,
including our affiliates. We will describe the terms of our direct sales in the prospectus supplement. We may also sell our securities
upon the exercise of rights which we may issue.
General
Information
Underwriters,
dealers and agents that participate in the distribution of our securities may be underwriters as defined in the Securities Act,
and any discounts or commissions they receive and any profit they make on the resale of the offered securities may be treated
as underwriting discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation
described in a prospectus supplement. We may indemnify agents, underwriters, and dealers against certain civil liabilities, including
liabilities under the Securities Act, or make contributions to payments they may be required to make relating to those liabilities.
Our agents, underwriters, and dealers, or their affiliates, may be customers of, engage in transactions with, or perform services
for us in the ordinary course of business.
Each
series of securities offered by this prospectus (other than common stock) may be a new issue of securities with no established
trading market. Any underwriters to whom securities offered by this prospectus are sold by us for public offering and sale may
make a market in the securities offered by this prospectus, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for any securities
offered by this prospectus.
Representatives
of the underwriters through whom our securities are sold for public offering and sale may engage in over-allotment, stabilizing
transactions, syndicate short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment
involves syndicate sales in excess of the offering size, which creates a syndicate short position. Stabilizing transactions permit
bids to purchase the offered securities so long as the stabilizing bids do not exceed a specified maximum.
Syndicate
covering transactions involve purchases of the offered securities in the open market after the distribution has been completed
in order to cover syndicate short positions. Penalty bids permit the representative of the underwriters to reclaim a selling concession
from a syndicate member when the offered securities originally sold by such syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Such stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of the offered securities to be higher than it would otherwise be in the absence of such transactions. These
transactions may be effected on a national securities exchange and, if commenced, may be discontinued at any time. Underwriters,
dealers and agents may be customers of, engage in transactions with or perform services for, us and our subsidiaries in the ordinary
course of business.
Fees
and Commissions
In
compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission
or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer
will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement or other offering materials;
however, it is anticipated that the maximum commission or discount to be received in any particular offering of securities will
be less than this amount.
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA
Rule 5121.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed on for us by Woodburn and Wedge and Porter Hedges
LLP. Any underwriters will be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The
consolidated balance sheet of Camber Energy, Inc. (formerly Lucas Energy, Inc.) as of March 31, 2016 and the related
consolidated statements of operations, stockholders’ equity, and cash flows for the year ended March 31, 2016,
appearing in Camber Energy Inc.’s Annual Report (Form 10-K) for the year ended March 31, 2016 have been audited by GBH
CPAs, PC, independent registered public accounting firm, as set forth in their report thereon, and incorporated herein
by reference.
The
consolidated balance sheet of Camber Energy, Inc. as of March 31, 2015 and the related consolidated statements of operations,
stockholders’ equity, and cash flows for the year ended March 31, 2015, appearing in Camber Energy Inc.’s Annual Report
(Form 10-K) for the year ended March 31, 2016 have been audited by Hein & Associates LLP, independent registered public accounting
firm, as set forth in their report thereon, and incorporated herein by reference.
The statements of revenues and direct operating expenses of the oil and gas properties acquired from Segundo Resources,
LLC (the seller representative for various Sellers) for the years ended March 31, 2016 and 2015 appearing in Camber Energy Inc.’s
Current Report on Form 8-K/A (Amendment No. 1) for an event dated August 25, 2016 have been audited by GBH CPAs, PC, independent
registered public accounting firm, as set forth in their report thereon, and incorporated herein by reference.
Such
financial statements and consolidated financial statements are incorporated herein by reference in reliance upon such reports
given on the authority of such firms as experts in accounting and auditing.
Certain
estimates of proved oil reserves for us that are incorporated herein by reference were based upon engineering reports prepared
by Ralph E. Davis Associates, LLC, independent oil and gas consultants. 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 the various expenses, all of which will be borne by us, in connection with the sale and distribution
of the securities being registered, other than the underwriting discounts and commissions. All amounts shown are estimates except
for the Securities and Exchange Commission registration fee.
|
|
Securities and Exchange Commission registration fee
|
|
$
|
17,385
|
|
|
|
Accounting fees and expenses
|
|
|
5,500
|
|
|
|
Legal fees and expenses
|
|
|
30,000
|
|
|
|
Printing and engraving expenses
|
|
|
—
|
|
|
|
Miscellaneous
|
|
|
2,115
|
|
|
|
Total
|
|
$
|
55,000
|
|
|
|
Item
15.
|
Indemnification
of Directors and Officers.
|
As
authorized by Section 78.751 of the Nevada Revised Statutes, we may indemnify our officers and directors against expenses incurred
by such persons in connection with any threatened, pending or completed action, suit or proceedings, whether civil, criminal,
administrative or investigative, involving such persons in their capacities as officers and directors, so long as such persons
(1) not liable pursuant to Section 78.138 of the Nevada Revised Statutes or (2) acted in good faith and in a manner which they
reasonably believed to be in or not opposed to our best interests, or that, with respect to any criminal action or proceeding,
he or she had reasonable cause to believe that the conduct was unlawful. If the legal proceeding, however, is by or in our right,
the director or officer may not be indemnified in respect of any claim, issue or matter as to which he is adjudged to be liable
for negligence or misconduct in the performance of his duty to us unless a court determines otherwise.
Under
Nevada law, corporations may also purchase and maintain insurance or make other financial arrangements on behalf of any person
who is or was a director or officer (or is serving at our request as a director or officer of another corporation) for any liability
asserted against such person and any expenses incurred by him in his capacity as a director or officer. These financial arrangements
may include trust funds, self-insurance programs and guaranties.
Our
amended articles of incorporation provide that our directors and officers shall not be personally liable to us or our stockholders
for damages for breach of such directors’ or officers’ fiduciary duty, but do not eliminate liability for acts or
omissions which involve intentional misconduct, fraud or a knowing violation of law, or the payment of dividends in violation
of the Nevada Revised Statutes. The effect of this provision of our articles of incorporation, as amended, is to eliminate our
rights and those of our stockholders (through stockholders’ derivative suits on behalf of the Company) to recover damages
against a director or officer for breach of the fiduciary duty of care as a director or officer (including breaches resulting
from negligent or grossly negligent behavior), except under certain situations described above or defined by statute.
Our
bylaws, as amended, provide that we shall indemnify every (i) present or former director, advisory director or officer of us,
(ii) any person who while serving in any of the capacities referred to in clause (i) served at our request as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, and (iii) any person nominated or designated by (or pursuant
to authority granted by) the Board of Directors or any committee thereof to serve in any of the capacities referred to in clauses
(i) or (ii) (each, an “Indemnitee”). Our bylaws provide that we shall indemnify each Indemnitee against all judgments,
penalties (including excise and similar taxes), fines, amounts paid in settlement and reasonable expenses actually incurred by
the Indemnitee in connection with any proceeding in which he was, is or is threatened to be named as a defendant or respondent,
or in which he was or is a witness without being named a defendant or respondent, by reason, in whole or in part, of his serving
or having served, or having been nominated or designated to serve, if it is determined that the Indemnitee (a) conducted himself
in good faith, (b) reasonably believed, in the case of conduct in his official capacity, that his conduct was in our best interests
and, in all other cases, that his conduct was at least not opposed to our best interests, and (c) in the case of any criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that in the event that an Indemnitee
is found liable to us or is found liable on the basis that personal benefit was improperly received by the Indemnitee, the indemnification
(i) is limited to reasonable expenses actually incurred by the Indemnitee in connection with the proceeding and (ii) shall not
be made in respect of any proceeding in which the Indemnitee shall have been found liable for willful or intentional misconduct
in the performance of his duty to us. We believe that the indemnification provisions in our articles of incorporation, as amended,
and bylaws, as amended, are necessary to attract and retain qualified persons as directors and officers.
Our
bylaws provide that no indemnification shall be made in respect to any proceeding in which such Indemnitee has been (i) found
liable on the basis that personal benefit was improperly received by him, whether or not the benefit resulted from an action taken
in the Indemnitee’s official capacity, or (ii) found liable to us. The termination of any proceeding by judgment, order,
settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee
did not meet the requirements set forth in clauses (a), (b) or (c) in the preceding paragraph. An Indemnitee shall be deemed to
have been found liable in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court
of competent jurisdiction after exhaustion of all appeals therefrom. Reasonable expenses shall, include, without limitation, all
court costs and all fees and disbursements of attorneys’ fees for the Indemnitee. The indemnification provided shall be
applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven.
Neither
our bylaws nor our articles of incorporation include any specific indemnification provisions for our officers or directors against
liability under the Securities Act. Additionally, insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
|
ITEM 16.
|
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
|
|
Exhibit
No.
|
|
Description
of Exhibit
|
|
1.1
(1)
|
|
Form
of Underwriting Agreement.
|
|
2.1
|
|
Asset
Purchase Agreement dated December 31, 2015 (incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K filed
on December 31, 2015).
|
|
2.2
|
|
First
Amendment to Asset Purchase Agreement by and between the Company, as purchaser, Segundo Resources, LLC, as seller representative
to the various sellers named therein, and the sellers named therein dated April 20, 2016 and effective April 1, 2016 (incorporated
by reference to Exhibit 2.2 to the Company’s Form 8-K filed on April 25, 2016).
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|
2.3
|
|
Second
Amendment to Asset Purchase Agreement by and between the Company, as purchaser, Segundo Resources, LLC, as seller representative
to the various sellers named therein, and the sellers named therein dated August 25, 2016 (incorporated by reference to Exhibit
2.1 to the Company’s Form 8-K filed on August 31, 2016).
|
|
2.4
|
|
Letter
Agreement dated August 25, 2016, by and between the Company and RAD2 Minerals, Ltd. (incorporated by reference to Exhibit
10.1 to the Company’s Form 8-K filed on August 31, 2016).
|
|
2.5
|
|
Letter
Agreement dated September 29, 2016, by and between the Company and RAD2 Minerals, Ltd. (incorporated by reference to Exhibit
10.1 to the Company’s Form 8-K filed on October 3, 2016).
|
|
3.1
|
|
Articles
of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-KSB for the fiscal
year ended November 30, 2005 filed on February 14, 2006).
|
|
3.2
|
|
Certificate
of Amendment to Articles of Incorporation (incorporated by reference to Exhibit B to the Company’s Information Statement
on Schedule 14C filed on June 1, 2006).
|
|
3.3
|
|
Certificate
of Amendment to Articles of Incorporation (incorporated by reference to Exhibit B to the Company’s Information Statement
on Schedule 14C filed on February 16, 2007).
|
|
3.4
|
|
Certificate
of Amendment to Articles of Incorporation (incorporated by reference to Exhibit B to the Company’s Proxy Statement on
Schedule 14A filed on March 31, 2010).
|
|
3.5
|
|
Certificate
of Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Report on Form
8-K filed on January 11, 2011).
|
|
3.6
|
|
Certificate
of Amendment to Articles of Incorporation (1-for-25 Reverse Stock Split of common stock) (incorporated by reference to Exhibit
3.1 to the Company’s Report on Form 8-K filed on July 2, 2015).
|
|
3.7
|
|
Amended
and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed on April 1, 2016).
|
|
3.8
|
|
Certificate
of Amendment to the Articles of Incorporation, amending the Company’s name to “Camber Energy, Inc.”, filed
with the Secretary of State of Nevada on January 3, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s
Quarterly Report on Form 10-Q filed on February 14, 2017).
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|
3.9
(2)
|
|
Certificate of Formation of Camber Permian LLC.
|
|
Exhibit
No.
|
|
Description
of Exhibit
|
|
3.10
(2)
|
|
LLC Agreement for Camber Permian LLC.
|
|
3.11
(2)
|
|
Certificate of Formation of LEI Operating LLC.
|
|
3.12
(2)
|
|
Certificate of Amendment to Certificate of Formation of LEI Operating amending the Company’s name to “CEI Operating LLC”.
|
|
3.13
(2)
|
|
LLC Agreement for CEI Operating LLC.
|
|
4.1
|
|
Certificate
of Designations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly
Report on Form 10-Q filed on November 14, 2011).
|
|
4.2
|
|
Amended
and Restated Certificate of Designation of Series B Redeemable Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K filed on August 31, 2016).
|
|
4.3
|
|
Certificate
of Designation of Series C Redeemable Convertible Preferred Stock (incorporated by reference to Exhibit 3.2 to the Company’s
Current Report on Form 8-K filed on August 31, 2016).
|
|
4.4
|
|
Stock
Purchase Agreement (incorporated by reference to Exhibit 4.12 to the Company’s Registration Statement on Form S-3 filed
on August 16, 2016).
|
|
4.5
|
|
First
Amendment to Stock Purchase Agreement (incorporated by reference to Exhibit 4.13 to the Company’s Registration Statement
on Form S-3 filed on August 16, 2016).
|
|
4.6
|
|
Second
Amendment to Stock Purchase Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on
Form 8-K filed on October 3, 2016).
|
|
4.7
|
|
Third
Amendment to Stock Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on
Form 8-K filed on November 17, 2016).
|
|
4.8
|
|
Common
Stock Purchase Second Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K
filed on September 8, 2016).
|
|
4.9
|
|
Securities
Purchase Agreement (incorporated by reference to Exhibit 4.11 to the Company’s Registration Statement on Form S-3 filed
on August 16, 2016).
|
|
4.10
|
|
Common
Stock Purchase First Warrant (incorporated by reference to Exhibit 4.14 to the Company’s Registration Statement on Form
S-3 filed on August 16, 2016).
|
|
4.11
|
|
Redeemable
Convertible Subordinated Debenture (incorporated by reference to Exhibit 4.16 to the Company’s Registration Statement
on Form S-3 filed on August 16, 2016).
|
|
4.12
|
|
Form
of Series B and C Warrant (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed
on December 27, 2010).
|
|
4.13
|
|
Form
of Common Stock Purchase Warrant by and between the Company and each investor dated as of April 16, 2012 (incorporated by
reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on April 16, 2012).
|
|
4.14
|
|
Form
of Common Stock Purchase Warrant (April 4, 2013 Loan Agreement) (incorporated by reference to Exhibit 4.1 to the Company’s
Current Report on Form 8-K filed on April 8, 2013).
|
|
4.15
|
|
Common
Stock Purchase Warrant - Robertson Global Credit, LLC (incorporated by reference to Exhibit 4.1 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended June 30, 2013 filed on August 14, 2013).
|
|
4.16
|
|
Form
of Common Stock Purchase Warrant (May 31, 2013 Loan Agreement) (incorporated by reference to Exhibit 4.7 to the Company’s
Annual Report on Form 10-K for the year ended March 31, 2013 filed on June 28, 2013).
|
|
4.17
|
|
Common
Stock Purchase Warrant – Ironman Energy Master Fund (583,333 warrants) (April 21, 2014) (incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on April 22, 2014).
|
|
4.18
|
|
Common
Stock Purchase Warrant – Ironman PI Fund II (QP), LP (250,000 warrants) (April 21, 2014) (incorporated by reference
to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on April 22, 2014).
|
|
4.19
|
|
Common
Stock Purchase Warrant – John B. Helmers (833,333 warrants) (April 21, 2014) (incorporated by reference to Exhibit 4.3
to the Company’s Current Report on Form 8-K field on April 22, 2014).
|
|
4.20
|
|
Form
of Common Stock Purchase Warrant provided by the Company to Target Alliance London Limited (incorporated by reference to Exhibit
10.2 to the Company’s Report on Form 8-K filed on April 15, 2016).
|
|
4.21
|
|
Form
of Common Stock Purchase Warrant (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K filed
on April 1, 2016).
|
|
4.22
|
|
Form
of Redeemable Convertible Subordinated Debenture (incorporated by reference to Exhibit 4.1 to the Company’s Current
Report on Form 8-K filed on April 7, 2016).
|
|
Exhibit
No.
|
|
Description
of Exhibit
|
|
4.23
|
|
Form
of Common Stock Purchase First Warrant (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on
Form 8-K filed on April 7, 2016).
|
|
4.24
|
|
Form
of Common Stock Purchase Second Warrant (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on
Form 8-K filed on April 7, 2016).
|
|
4.25+
|
|
Form
of Officer Stock Option Agreement (incorporated by reference to Exhibit 10.22 to the Company’s Annual Report on Form
10-K filed on June 29, 2011).
|
|
4.26+
|
|
Form
of Director Stock Option Agreement (incorporated by reference to Exhibit 10.23 to the Company’s Annual Report on Form
10-K filed on June 29, 2011).
|
|
4.27+
|
|
Form
of Stock Option Agreement 2012 Stock Incentive Plan (incorporated by reference to Exhibit 4.4 to the Company’s Annual
Report on Form 10-K filed on June 27, 2014).
|
|
4.28
(2)
|
|
Form of Senior Indenture.
|
|
4.29
(2)
|
|
Form of Subordinated Indenture.
|
|
4.30
(1)
|
|
Form
of Senior Debt Security.
|
|
4.31
(1)
|
|
Form
of Subordinated Debt Security.
|
|
4.32
(1)
|
|
Form
of Warrant Agreement, including form of Warrant.
|
|
4.33
(1)
|
|
Form
of Subscription Rights Agreement and Form Subscription Rights Certificate.
|
|
4.34
(1)
|
|
Form
of Purchase Contract.
|
|
4.35
(1)
|
|
Form
of Unit Agreement.
|
|
4.36
(1)
|
|
Form
of Pledge Agreement.
|
|
4.37
(1)
|
|
Form
of Deposit Agreement.
|
|
4.38
(1)
|
|
Form
of Depositary Share.
|
|
4.39
(1)
|
|
Form
of Guarantee.
|
|
5.1
(2)
|
|
Opinion of Woodburn and Wedge with respect to legality of the securities, including consent.
|
|
5.2
(2)
|
|
Opinion of Porter Hedges LLP with respect to legality of the securities, including consent.
|
|
23.1
(2)
|
|
Consent of GBH CPAs, PC
|
|
23.2
(2)
|
|
Consent of Hein & Associates LLP
|
|
23.3
(2)
|
|
Consent of Ralph E. Davis Associates, LLC
|
|
23.4
(2)
|
|
Consent of Woodburn and Wedge (included in Exhibit 5.1).
|
|
23.5
(2)
|
|
Consent
of Porter Hedges LLP (included in Exhibit 5.2).
|
|
24.1
(2)
|
|
Power
of Attorney (contained in signature pages).
|
|
25.1
(2)
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Trustee under the Senior Indenture.
|
|
25.2
(2)
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Trustee under the Subordinated Indenture.
|
+
Management contract or compensatory plan.
|
|
(1)
|
We
will file as an exhibit to a current report on Form 8-K (i) any underwriting agreement
relating to securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock, warrants, depositary shares, subscription rights,
purchase contracts or units (iii) any additional required opinion of counsel as to the
legality of the securities offered hereby, or (iv) any required opinion of counsel as
to certain tax matters relative to securities offered hereby.
|
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided
,
however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
(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 of 1933 to any purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 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; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
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 first use, 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 date of first use.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) 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 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, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Houston, State of Texas, on the 24th day of February,
2017.
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CAMBER
ENERGY, INC.
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By:
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/s/
Anthony C. Schnur
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Anthony
C. Schnur
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Chief
Executive Officer and President
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POWER
OF ATTORNEY AND SIGNATURES
We
the undersigned officers and directors of Camber Energy, Inc., hereby, severally constitute and appoint Anthony C. Schnur and
Paul A. Pinkston, each of them singly, our true and lawful attorneys with full power to them and each of them singly, to sign
for us and in our names in the capacities indicated below, the registration statement on Form S-3 filed herewith and any and all
pre-effective and post-effective amendments to said registration statement and any subsequent registration statement for the same
offering which may be filed under Rule 462(b) and generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable Camber Energy, Inc. to comply with the provisions of the Securities Act of 1933, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys,
or any of them, to said registration statement and any and all amendments thereto or to any subsequent registration statement
for the same offering which may be filed under Rule 462(b).
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 dates indicated.
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Signature
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Title
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Date
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Chief
Executive Officer,
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/s/
Anthony C. Schnur
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President
and Director (Principal Executive Officer)
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February
24, 2017
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Anthony
C. Schnur
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/s/
Paul A. Pinkston
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Chief
Accounting Officer, Treasurer and Secretary
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February
24, 2017
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Paul
A. Pinkston
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(Principal
Financial and Accounting Officer)
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/s/
Richard N. Azar, II
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Executive
Chairman of the Board
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February
24, 2017
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Richard
N. Azar, II
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/s/
J. Fred Hofheinz
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Director
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February
24, 2017
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J.
Fred Hofheinz
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/s/
Alan W. Dreeben
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Director
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February
24, 2017
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Alan
W. Dreeben
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/s/
Robert D. Tips
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Director
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February
24, 2017
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Robert
D. Tips
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/s/
Fred S. Zeidman
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Director
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February
24, 2017
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Fred
S. Zeidman
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Houston, State of Texas, on the 24th day of February, 2017.
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CAMBER
PERMIAN LLC
CEI
OPERATING LLC
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By:
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/s/ Anthony
C. Schnur
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Anthony
C. Schnur
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Chief
Executive Officer and President
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POWER
OF ATTORNEY AND SIGNATURES
We
the undersigned officers and directors, as applicable, of Camber Permian LLC and CEI Operating LLC, hereby, severally constitute
and appoint Anthony C. Schnur and Paul A. Pinkston, each of them singly, our true and lawful attorneys with full power to them
and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form
S-3 filed herewith and any and all pre-effective and post-effective amendments to said registration statement and any subsequent
registration statement for the same offering which may be filed under Rule 462(b) and generally to do all such things in our names
and on our behalf in our capacities as officers and directors to enable Camber Permian LLC and CEI Operating LLC. to comply with
the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and
any and all amendments thereto or to any subsequent registration statement for the same offering which may be filed under Rule
462(b).
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 dates indicated.
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Signature
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Title
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Date
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Chief
Executive Officer and
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/s/
Anthony C. Schnur
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President
(Principal Executive Officer) of CEI Operating
LLC and Camber Permian LLC
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February
24, 2017
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Anthony
C. Schnur
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/s/
Paul A. Pinkston
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Chief
Accounting Officer, Treasurer and Secretary
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February
24, 2017
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Paul
A. Pinkston
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(Principal
Financial and Accounting Officer) of CEI
Operating LLC and Camber Permian LLC
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/s/
J. Fred Hofheinz
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Director
of CEI Operating LLC
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February
24, 2017
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J.
Fred Hofheinz
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/s/
Fred S. Zeidman
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Director
of CEI Operating LLC
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February
24, 2017
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Fred
S. Zeidman
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Camber Energy, Inc. - S-3
Exhibit 3.9
CERTIFICATE OF FORMATION
OF
CAMBER PERMIAN LLC
The undersigned person,
acting as organizer of a limited liability company (“
Company
”) under the Texas Business Organizations
Code (as amended, the “
TBOC
”), hereby adopts the following Certificate of Formation for the Company:
Article
I
NAME
The name of the Company
is Camber Permian LLC.
Article
II
ENTITY
The filing entity being
formed is a limited liability company.
Article
III
PURPOSE
The purpose for which the
Company is organized is for the transaction of any and all lawful business for which limited liability companies may be organized
under the TBOC, except as may be otherwise provided in the company agreement of the Company.
Article
IV
DURATION
The period of the duration
of the Company is perpetual.
Article
V
INITIAL REGISTERED OFFICE AND AGENT
The Company’s initial
registered agent Anthony C. Schnur, and the mailing address of its registered office is 450 Gears Road, Suite 780, Houston, Texas
77067.
Article
VI
ORGANIZER
The name and address of
the organizer is as follows:
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Anthony C. Schnur
450 Gears Road,
Suite 780
Houston, Texas
77067
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Article
VII
MEMBERS
The Company shall be managed
by its members. The name and address of the initial member of the Company is:
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Name
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Address
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Lucas Energy, Inc.
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450 Gears Road, Suite 780
Houston, Texas 77067
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Article
VIII
LIMITATION OF MEMBER AND OFFICER
LIABILITY
To the greatest extent permitted
by applicable law in effect from time to time, no officer, member, former officer, or former member (each, an “
Indemnified
Person
”) shall be liable to the Company or its members for monetary damages for an act or omission in the Indemnified
Person’s capacity as an officer or member except to the extent that the Indemnified Person is found to be liable under applicable
law for: (i) breach of the Indemnified Person’s duty of loyalty, if any, to the Company or its members, (ii) an act or omission
not committed in good faith that constitutes a breach of duty of the Indemnified Person to the Company, (iii) an act or omission
not committed in good faith that constitutes a breach of duty owed by the Indemnified Person to the Company or its members, (iv)
willful or intentional misconduct in the performance of the Indemnified Person’s duty to the Company or (v) a transaction
from which the Indemnified Person received an improper benefit, regardless of whether the benefit resulted from an action taken
within the scope of the Indemnified Person’s duties. If the applicable law is hereafter amended to authorize the further
elimination or limitation of the liability of an officer or member of a limited liability company, then the liability of an Indemnified
Person shall be eliminated or limited to the fullest extent permitted by the applicable law as so amended. No amendment to, or
repeal of, this provision will apply to or have any affect on the limited or alleged liability of any Indemnified Person for or
with respect to any acts or omissions of the Indemnified Person occurring prior to such amendment or repeal.
Article
IX
INDEMNIFICATION AND INSURANCE
The Company shall indemnify
an Indemnified Person to the same extent that a corporation is permitted to indemnify a governing person, former governing person,
or delegate under the TBOC, as well as to the same extent that indemnification is required under the TBOC for a governing person,
former governing person, or delegate of a corporation. The reasonable expenses incurred by an Indemnified Person in defending a
proceeding shall be paid by the Company in advance of the final disposition of such proceeding to the fullest extent permitted
under the TBOC. The Company shall pay or reimburse reasonable expenses incurred by an Indemnified Person in connection with such
person’s appearance as a witness or other participation in a proceeding at a time when such person is not a respondent in
the proceeding. Such indemnification shall not be deemed exclusive of any other rights to which such Indemnified Person may be
entitled, under any company agreement, other agreement, vote of members or disinterested members, or otherwise, both as to actions
taken in its official capacity and as to actions in another capacity while holding such position or office, and shall inure to
the benefit of the heirs, executors and administrators of such person. The Company shall have the power to enter into agreements
providing for indemnification by the Company of Indemnified Persons or delegates from and against any and all expenses, liabilities
or other matters. The member may purchase, on behalf of the Company, such liability, indemnification and/or other similar insurance
as member, in its sole discretion, shall determine is necessary or appropriate from time to time. No amendment, modification, or
repeal of this provision will apply to or adversely affect any right or protection of any Indemnified Person hereunder for or with
respect to any acts or omissions of the Indemnified Person occurring prior to such amendment, modification or repeal
.
[The
remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the
undersigned, being the organizer designated in
Article VI
, executes this Certificate of Formation subject to the
penalties imposed by law for the submission of a materially false or fraudulent instrument.
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ORGANIZER:
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/s/ Anthony C. Schnur
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Anthony C. Schnur
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Dated: December 30, 2016
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Camber Energy, Inc. - S-3
Exhibit 3.10
LIMITED LIABILITY
COMPANY AGREEMENT
OF
CAMBER PERMIAN
LLC
A Texas Limited Liability Company
This Limited Liability Company
Agreement of
Camber Permian LLC
(this “
Agreement
”), dated
as of December 30, 2016, is adopted, executed and agreed to by the sole Member (as defined below).
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1.
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Formation
. Camber Permian LLC (the “
Company
”) has been organized
as a Texas limited liability company under and pursuant to the Texas Business Organizations Code (as amended from time to time,
the “
TBOC
”).
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2.
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Sole Member
. Lucas Energy, Inc. shall be the initial sole member of the Company (the “
Member
”).
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3.
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Contributions
. The Member has made an initial contribution to the capital of the Company.
Without creating any rights in favor of any third party, the Member may, from time to time, make additional contributions of cash
or property to the capital of the Company, but the Member shall have no obligation to do so.
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4.
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Units
. Ownership in the Company shall be represented by membership units (“
Units
”).
Such Units may, but need not, be represented by written certificates. The Member shall receive one thousand (1,000) Units in return
for its initial capital contribution.
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5.
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Management
. The powers of the Company shall be exercised by or under the authority of, and
the business and affairs of the Company shall be managed under the direction of, the sole Member, who shall make all decisions
and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may
not be members of the Company, as officers (“
Officers
”) of the Company. Officers shall have such rights
and duties as may be designated by the Member.
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6.
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Distributions
. The Member shall be entitled (a) to receive all distributions (including,
without limitation, liquidating distributions) made by the Company, and (b) to enjoy all other rights, benefits and interests in
the Company.
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7.
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Winding Up
. The Company shall be wound up upon (a) the consent of the Member or (b) the
entry of a decree by a court requiring the winding up or dissolution of the Company under the TBOC. No other event will cause the
Company to wind up.
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8.
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Limitation of Liability
. No member or Officer (each, a “
Management Person
”)
shall be liable to the Company or the Member for monetary damages for an act or omission in the Management Person’s capacity
as a member or Officer except to the extent that the Management Person is found to be liable under applicable law for: (a) a breach
of the Management Person’s duty of loyalty, if any, to the Company or its member, (b) an act or omission not committed in
good faith that constitutes a breach of duty of the Management Person to the Company, (c) an act or omission not committed in good
faith that constitutes a breach of a duty owed by the Management Person to the Company or its member, (d) willful or intentional
misconduct in the performance of the Management Person’s duty to the Company or (e) a transaction from which the Management
Person received an improper benefit, regardless of whether the benefit resulted from an action taken within the scope of the Management
Person’s duties. Except for such duties expressly set forth in this Agreement, a Management Person shall not be subject to
any duties (including fiduciary duties) in the management of the Company. No amendment to or repeal of the Certificate of Formation
of the Company (the “
Certificate of Formation
”) or this Agreement will apply to or have any effect on
the liability or alleged liability of any Management Person for or with respect to any acts or omissions of the Management Person
occurring prior to such amendment or repeal.
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9.
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Mandatory Indemnification
.
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(a) Each
person who at any time is or was a Management Person, and is threatened to be or is made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (a “
Proceeding
”),
by reason of the fact that such person is or was a Management Person, or is or was serving at the request of the Company as a director,
officer, partner, venturer, proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign
limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other
for-profit or non-profit enterprise, whether the basis of such Proceeding is an alleged action in such person’s official
capacity or in another capacity while holding such office, shall be indemnified and held harmless by the Company to the fullest
extent authorized by the TBOC, or any other applicable law as may from time to time be in effect (but, in the case of any such
amendment or enactment, only to the extent that such amendment or law permits the Company to provide broader indemnification rights
than such law prior to such amendment or enactment permitted the Company to provide), against all expense, liability and loss (including,
without limitation, court costs and attorneys’ fees, judgments, fines, excise taxes or penalties, and amounts paid or to
be paid in settlement) actually and reasonably incurred or suffered by such person in connection with such Proceeding, and such
indemnification shall continue as to a person who has ceased to be a Management Person or a director, officer, partner, venturer,
proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign limited liability company, corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or other for–profit or non–profit enterprise,
and shall inure to the benefit of such person’s assigns, heirs, executors and administrators. The Company’s obligations
under this paragraph (a) include, but are not limited to, the convening of any meeting, and the consideration of any matter thereby,
required by statute in order to determine the eligibility of any person for indemnification.
(b)
Prepayment
of Expenses
. Expenses incurred by a Management Person in defending a Proceeding shall be paid by the Company in advance of
the final disposition of such Proceeding to the fullest extent permitted by, and only in compliance with, the TBOC or any other
applicable laws as may from time to time be in effect, including, without limitation, any provision of the TBOC which requires,
as a condition precedent to such expense advancement, the delivery to the Company of an undertaking by or on behalf of such Management
Person to repay all amounts so advanced if it shall ultimately be determined that such Management Person is not entitled to be
indemnified under paragraph (a) above or otherwise. Repayments of all amounts so advanced shall be upon such terms and conditions,
if any, as the Company’s members deem appropriate.
(c)
Vesting
.
The Company’s obligation to indemnify and to prepay expenses under paragraphs (a) and (b) above shall arise, and all rights
granted to the Management Persons hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding
relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to
be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. Notwithstanding any other
provision of the Certificate of Formation or this Agreement, no action taken by the Company, either by amendment of the Certificate
of Formation or this Agreement or otherwise, shall diminish or adversely affect any rights to indemnification or prepayment of
expenses granted under paragraphs (a) and (b) above which shall have become vested as aforesaid prior to the date that such amendment
or other corporate action is effective or taken, whichever is later.
(d)
Enforcement
.
If a claim under paragraph (a) or paragraph (b) or both paragraphs (a) and (b) is not paid in full by the Company within thirty
(30) days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit in a court
of competent jurisdiction against the Company to recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall also be entitled to be paid the expense of prosecuting such claim. It shall be a defense to any such suit (other
than a suit brought to enforce a claim for expenses incurred in defending any Proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company) that the claimant has not met the standards of
conduct which make it permissible under the TBOC or other applicable law to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Company. The failure of the Company (including its members and independent legal
counsel) to have made a determination prior to the commencement of such suit as to whether indemnification is proper in the circumstances
based upon the applicable standard of conduct set forth in the TBOC or other applicable law shall neither be a defense to the action
nor create a presumption that the claimant has not met the applicable standard of conduct. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendere
or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal Proceeding, had reasonable cause to believe that its conduct
was unlawful.
(e)
Nonexclusive
.
The indemnification provided by this
Section 9
shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under any statute, other provisions of the Certificate of Formation, this Agreement, vote
of the members of the Company, or otherwise, both as to action in such person’s official capacity and as to action in another
capacity while holding such office.
(f)
Permissive
Indemnification
. The rights to indemnification and prepayment of expenses which are conferred to the Management Persons by
paragraphs (a) and (b) above may be conferred upon any employee or agent of the Company if, and to the extent, authorized by the
members.
(g)
Insurance
.
The Company shall the have power to purchase and maintain insurance, at its expense, on behalf of any person who is or was a member,
Officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, partner,
venturer, proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign limited liability
company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other for-profit or non-profit
enterprise against any expense, liability or loss asserted against such person and incurred by such person in any such capacity,
or arising out of such person’s status as such, whether or not the Company would have the power to indemnify such person
against such expense, liability or loss under the provisions of this
Section 9
, the Agreement, the TBOC or other
applicable law.
(h)
Implementing
Arrangements
. Without limiting the power of the Company to procure or maintain insurance or other arrangement on behalf of
any of the persons as described in
paragraph (g)
above, the Company may, for the benefit of persons eligible for
indemnification by the Company, (i) create a trust fund, (ii) establish any form of self-insurance, (iii) secure its indemnity
obligation by grant of a security interest or other lien on the assets of the Company, or (iv) establish a letter of credit, guaranty
or surety arrangement.
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10.
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Governing Law
. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS (EXCLUDING ITS CONFLICT-OF-LAWS RULES).
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[Signature Page Follows]
IN WITNESS WHEREOF, the sole
Member has adopted, executed and agreed to this Agreement effective as of the date first above written.
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SOLE MEMBER:
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LUCAS ENERGY, INC.
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By:
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/s/ Anthony C. Schnur
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Name: Anthony C. Schnur
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Title: Chief Executive Officer
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Camber Energy, Inc. - S-3
Exhibit 3.11
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Certificate
of Formation
Limited
Liability Company
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Secretary of State
P.O. Box 13697
Austin, TX 78711-3697
FAX: 512/463-5709
Filing Fee: $300
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Filed
in the Office of the
Secretary of State of Texas
Filing
#: 801983235 05/02/2014
Document
#: 542264300002
Image
Generated Electronically
for
Web Filing
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Article
1 - Entity Name and Type
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The
filing entity being formed is a limited liability company. The name of the entity is:
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LEI
Operatinq LLC
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Article
2 - Registered Agent and Registered Office
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☐
A. The initial registered agent is an organization (cannot be company named above) by the name of:
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OR
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☑
B. The initial registered agent is an individual resident of the state whose name is set forth below:
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Name:
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Anthony
C Schnur
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C.
The business address of the registered agent and the registered office address is:
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Street
Address:
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3555
Timmons Ln, Ste. 1550 Houston TX 77027
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Consent
of Registered Agent
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☐
A. A copy of the consent of registered agent is attached.
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OR
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☑
B. The consent of the registered agent is maintained by the entity.
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Article
3 - Governing Authority
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☐
A. The limited liability company is to be managed by managers.
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OR
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☑
B. The limited liability company will not have managers. Management of the company is reserved to the members. The names and
addresses of the governing persons are set forth below:
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Managing
Member
1:
(Business Name)
Lucas
Energy Inc.
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Address:
3555 Timmons Ln, Ste. 1550 Houston TX, USA 77027
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Article
4 - Purpose
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The
purpose for which the company is organized is for the transaction of any and all lawful business for which limited liability
companies may be organized under the Texas Business Organizations Code.
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Supplemental
Provisions / Information
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Supplemental
Provisions / Information
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[The
attached addendum, if any, is incorporated herein by reference.]
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Organizer
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The
name and address of the organizer are set forth below.
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Lucas
Energy, Inc.
3555 Timmons Lane,
Houston, Texas 77027
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Effectiveness
of Filing
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☑
A. This document becomes effective when the document is filed by the secretary of state.
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OR
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☐
B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its signing.
The delayed effective date is:
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Execution
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The
undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs
this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and
certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to
execute the filing instrument.
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Anthony
C. Schnur on behalf of Lucas Energy, Inc.
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Signature
of Organizer
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FILING
OFFICE COPY
Camber Energy, Inc. - S-3
Exhibit 3.12
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Form 424
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Certificate of
Amendment
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Secretary of State
P.O. Box 13697
Austin, TX 78711-3697
FAX: 512/463-5709
Filing Fee: See instructions
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Filed in the Office of the
Secretary of State of Texas
Filing #:
801983235 11/23/2016
Document #:
701412990003
Image Generated Electronically
for Web Filing
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Entity Information
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The
filing entity is a:
Domestic Limited Liability Company (LLC)
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The
name of the filing entity is:
LEI Operating LLC
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The
file number issued to the
filing
entity by the secretary of state is:
801983235
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Amendment
to Name
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The
amendment changes the formation document of the filing entity to change the article or provision that names the entity. The
article or provision is amended to read as follows:
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The
name of the filing entity is:
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CEI
Operating LLC
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A
letter of consent, if applicable, is attached.
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Statement
of Approval
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The
amendment has been approved in the manner required by the Texas Business Organizations Code and by the governing documents
of the entity.
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Effectiveness
of Filing
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|
☐
A. This document becomes effective when the document is filed by the secretary of state.
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☑
B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its filing by
the secretary of state. The delayed effective date is:
November 24, 2016
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Execution
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The
undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent
instrument and declares under penalty of perjury that the undersigned is authorized under the Texas Business Organizations
Code to execute the filing instrument.
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Date:
November 23, 2016
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Anthony
C. Schnur
Signature
of authorized person
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FILING
OFFICE COPY
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Camber Energy, Inc. - S-3
Exhibit 3.13
LEI OPERATING LLC
A Texas Limited Liability Company
LIMITED LIABILITY
COMPANY AGREEMENT
effective as of October 29, 2014
TABLE OF CONTENTS
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Page
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A
rticle
1
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ORGANIZATION
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SECTION 1.1. FORMATION
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1
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SECTION 1.2. PURPOSE
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1
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SECTION 1.3. PRINCIPAL OFFICE
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1
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SECTION 1.4. FILINGS
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1
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SECTION 1.5. PERIOD OF EXISTENCE
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1
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SECTION 1.6. DISSOLUTION AND WINDING UP
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2
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A
rticle
2
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MEMBER
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SECTION 2.1. SINGLE MEMBER
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2
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SECTION 2.2. CAPITAL CONTRIBUTIONS BY MEMBER
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2
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SECTION 2.3. REGULAR MEETINGS
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2
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SECTION 2.4. SPECIAL MEETINGS
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2
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SECTION 2.5. TIME AND PLACE OF MEETING
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2
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SECTION 2.6. MANNER OF ACTING
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2
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SECTION 2.7. NO MEMBER LIABILITY
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2
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SECTION 2.8. NO DUTY OF LOYALTY
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3
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A
rticle
3
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NO MANAGERS
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A
rticle
4
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OFFICERS
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A
rticle
5
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INDEMNIFICATION AND INSURANCE
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SECTION 5.1. GENERAL
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3
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SECTION 5.2. INSURANCE
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4
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A
rticle
6
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MEMBERSHIP RIGHTS
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SECTION 6.1. AUTHORIZED MEMBERSHIP RIGHTS
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4
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SECTION 6.2. CERTIFICATES
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4
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SECTION 6.3. TRANSFERS OF MEMBERSHIP RIGHTS
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4
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A
rticle
7
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FINANCIAL MATTERS; BOOKS AND RECORDS
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SECTION 7.1. DISTRIBUTIONS OF NET CASH FLOW
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4
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SECTION 7.2. TAX STATUS
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5
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SECTION 7.3. MAINTENANCE OF BOOKS AND RECORDS
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5
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SECTION 7.4. ACCESS TO BOOKS AND RECORDS
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5
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SECTION 7.5. ACCOUNTING METHOD
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5
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SECTION 7.6. FISCAL YEAR
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5
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SECTION 7.7. TAX RETURNS
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5
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SECTION 7.8. BANKING
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5
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SECTION 7.9. DEPOSITS, CHECKS, AND DRAFTS
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6
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A
rticle
8
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TRANSFERS
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SECTION 8.1.
|
6
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A
rticle
9
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MISCELLANEOUS
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SECTION 9.1. AMENDMENTS
|
6
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SECTION 9.2. ENTIRE AGREEMENT
|
6
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SECTION 9.3. BINDING EFFECT
|
6
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SECTION 9.4. DEFINITIONS
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6
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SECTION 9.5. HEADINGS
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6
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SECTION 9.6. SEVERABILITY
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6
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SECTION 9.7. GOVERNING LAW & VENUE
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7
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EXHIBIT A
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Glossary of Terms
|
LIMITED LIABILITY .
COMPANY AGREEMENT
OF
LEI OPERATING LLC
A Texas Limited Liability Company
This LIMITED LIABILITY COMPANY AGREEMENT
(“
Agreement
”) is entered into effective as of October 29, 2014, for good and valuable consideration, by the
Member on the following terms and conditions:
Article
1
ORGANIZATION
Section
1.1.
FORMATION
. Company has been organized as a limited liability company under the TBOC pursuant to the filing
of the Certificate with the Secretary of State of the State of Texas. The Member hereby subscribes to and adopts this Agreement
for purposes of setting forth further terms and conditions pursuant to which Company will be organized and operated. Except as
expressly provided to the contrary in this Agreement, the rights, duties, status and liabilities of the Member, and the formation,
administration, dissolution, and continuation or termination of Company, shall be as provided in the TBOC.
Section
1.2.
PURPOSE
. The purpose of the Company is to transact any and all lawful business for which a limited liability
company may be organized under the TBOC.
Section
1.3.
PRINCIPAL OFFICE
. The principal office of Company in the United States shall be at 3555 Timmons Ln, Ste. 1550
Houston, Texas 77027, or such other place as the Member may designate, which need not be in the State of Texas, and Company shall
maintain records there as required by the TBOC. Company may have such other offices as the Member may designate.
Section
1.4.
FILINGS
. The Member shall take any and all actions, including without limitation the filing of amendments
to the Certificate or new certificates, necessary to perfect and maintain the status of Company as a limited liability company
under the laws of the State of Texas. The Member shall cause amendments to the Certificate to be filed whenever required by the
TBOC. Such amendments may be executed by the Member or any officer designated by the Member. Upon the dissolution and completion
of the winding up of Company, the Liquidator shall promptly execute and cause to be filed certificates of cancellation or dissolution
in accordance with the TBOC and the laws of any other states or jurisdictions in which Company has filed certificates.
Section
1.5.
PERIOD OF EXISTENCE
. Company’s existence shall continue until the dissolution and winding up of Company
and its business is completed pursuant to the requirements of Chapter 11 of the TBOC.
Section
1.6.
DISSOLUTION AND WINDING UP.
1.6.1.
Dissolution Events
. Company
shall dissolve and commence winding up upon the first to occur of any of the following (“
Dissolution Event
”):
(a) the affirmative vote of the Member to dissolve, wind up, and liquidate Company; (b) a judicial determination that an event
has occurred that makes it unlawful, impossible or impractical to carry on the business of Company; or (c) the occurrence of any
event that requires dissolution of Company pursuant to any provision of the TBOC. Notwithstanding any provision of the TBOC, Company
shall not dissolve prior to the occurrence of a Dissolution Event.
1.6.2.
Winding Up
. Upon the
occurrence of a Dissolution Event, Company shall continue solely for the purposes of winding up its affairs in an orderly manner
in accordance with the requirements of the TBOC;
provided, however
, that all covenants and agreements contained in this
Agreement shall continue to be fully binding upon the Member until such time as Company has completed the winding up of its affairs
pursuant to the TBOC.
Article
2
MEMBER
Section
2.1.
SINGLE MEMBER
. Company has been organized as a single-member limited liability company. Company’s sole
member is Lucas Energy, Inc., a Nevada corporation.
Section
2.2.
CAPITAL CONTRIBUTIONS BY MEMBER
. The Member shall contribute capital to the Company as and when it determines
in its sole discretion. Any such contributions shall be recorded in the books and records of the Company
Section
2.3.
REGULAR MEETINGS
. Regular meetings of the Member may be held, either with or without notice, on such day and
at such time as may be designated by the Member, and shall be for the purpose of transacting such business as may come before
the meeting.
Section
2.4.
SPECIAL MEETINGS
. Special meetings of the Member may be called, either with or without notice, by the Member.
Section
2.5.
TIME AND PLACE OF MEETING
. All meetings of the Member for any purpose may be held at the time and place within
or without the State of Texas as is determined by the Member.
Section
2.6.
MANNER OF ACTING
. The affirmative vote of the Member, or the authorized representative of the Member, shall
constitute the act of the Member. Any action required or permitted to be taken at any meeting of the Member may be taken without
a meeting, without prior notice, and without a vote, if a consent in writing setting forth the action so taken shall be signed
by the Member. The execution by the Member of any document shall constitute a consent by the Member pursuant to the immediately
preceding sentence to the execution of such document and the taking of any and all actions contemplated therein.
Section
2.7.
NO MEMBER LIABILITY
. The Member shall not be liable under a judgment, decree or order of a court, or in any
other manner for the debts or any other obligations or liabilities of Company. The Member shall not be required to lend any funds
to Company, or to make any additional contributions, assessments or payments to Company.
Section
2.8.
NO DUTY OF LOYALTY
. The Member and its Affiliates are free to engage or invest in an unlimited number of activities
or businesses, any one or more of which may be related to the activities or businesses of Company, without having or incurring
any obligation to offer any interest in such activities to Company, and neither this Agreement nor any activity undertaken pursuant
to this Agreement shall prevent the Member or its Affiliates from engaging in such activities, or require the Member to permit
Company or its Affiliates to participate in any such activities.
Article
3
NO MANAGERS
The Company shall not have managers.
Article
4
OFFICERS
The Member may, in its discretion,
elect officers of Company, having such titles and duties as determined by the Member.
Article
5
INDEMNIFICATION AND INSURANCE
Section
5.1.
GENERAL
. Company shall indemnify, defend, protect, and hold harmless each past or present, officer, employee
and affiliate, and, to the extent determined by the Member from time to time, agent and representative to the fullest extent permitted
and in the manner provided by the TBOC from and against all actions, suits, or proceedings, and all other claims, demands, losses,
damages, liabilities, judgments, awards, penalties, fines, settlements, costs, and expenses (including court costs and reasonable
attorneys’ fees), arising out of the management of Company or such person’s service or status as an officer, employee,
agent, or representative. THIS INDEMNITY SHALL APPLY TO MATTERS THAT ARISE OUT OF THE NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT
OR RESPONSIBILITY BY SUCH OFFICER, EMPLOYEE, AGENT OR REPRESENTATIVE;
PROVIDED, HOWEVER
, THAT THIS INDEMNITY SHALL NOT
APPLY TO MATTERS ARISING OUT OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF THIS AGREEMENT BY SUCH PERSON. Such indemnification
shall not be deemed exclusive of any other rights to which such persons may be entitled, under this Agreement, other agreements,
or otherwise, both as to actions taken in their official capacity and as to action in another capacity while holding such office,
and shall inure to the benefit of the heirs, executors and administrators of such persons. Company shall have the power to enter
into agreements providing for indemnification by Company of current or former officers, employees and agents or any other person
of or who served any predecessor company, corporation, partnership, joint venture, trust or other enterprise from and against
any and all expenses, liabilities or other matters. Company may purchase liability insurance for purposes of satisfying its obligations
under this Section 5.1. No amendment, modification, or repeal of this provision will apply to or adversely affect any right or
protection of any officer, employee, agent or representative of Company hereunder for or with respect to any acts or omissions
of an officer, employee or agent occurring prior to such amendment, modification or repeal.
Section
5.2.
INSURANCE
. Company may purchase and maintain, at its own expense, insurance to protect itself and any person
who is serving as an officer, employee, or agent of Company, or is or was serving at the request of Company as a manager, director,
partner, officer, venturer, proprietor, trustee, employee, agent or other similar functionary of another domestic or foreign entity
or enterprise against any claims, demands, losses, damages, liabilities, judgments, awards, penalties, fines, settlements, costs,
and expenses whether or not Company would have the power to indemnify such person against such amounts under this Article 5.
Article
6
MEMBERSHIP RIGHTS
Section
6.1.
AUTHORIZED MEMBERSHIP RIGHTS
. Company is authorized to issue Membership Rights as determined by the Member.
All Membership Rights shall initially be held by the Member.
Section
6.2.
CERTIFICATES
. All Membership Rights shall initially be uncertificated. Ownership certificates representing
Membership Rights shall be issued from time to time as the Member may determine is necessary or appropriate, and shall be in such
form, not inconsistent with the requirements of law and the Certificate, as the Member determines from time to time. All certificates
shall be consecutively numbered or otherwise identified. The name and address of the person to whom the Membership Rights represented
thereby are issued, with the number of Membership Rights and date of issue, shall be entered on the books and records of Company.
All certificates surrendered to Company for transfer shall be canceled and no new certificate shall be issued until the former
certificate for a like number of Membership Rights shall have been surrendered and canceled, except that in the case of a lost,
destroyed, or mutilated certificate a new one may be issued therefor upon such terms and indemnity to Company as the Member may
prescribe.
Section
6.3.
TRANSFERS OF MEMBERSHIP RIGHTS
. A transfer of Membership Rights authorized under Article 8 shall be made only
on the books and records of Company, by the holder of record thereof, or by the holder of record’s legal representative
or attorney-in-fact authorized by power of attorney (or such other evidence of authority as may be appropriate) duly executed
and filed with the Company, and upon surrender for cancellation of the certificate, if any, representing such Membership Rights.
Except as otherwise specifically provided in this Agreement, the person in whose name the Membership Rights stand on the books
of Company shall be deemed by Company to be the owner thereof for all purposes.
Article
7
FINANCIAL MATTERS; BOOKS AND RECORDS
Section
7.1.
DISTRIBUTIONS OF NET CASH FLOW
. Except as otherwise provided in this Agreement, Net Cash Flow, if any, shall
be distributed to the Member from time to time as the Member determines.
Section
7.2.
TAX STATUS
. Company is a single-member limited liability
company. Notwithstanding anything in this Agreement or Company’s other organizational documents to the contrary, Company’s
existence separate from its owner shall, solely for federal income tax purposes, be disregarded in accordance with the regulations
promulgated under Section 7701 of the Code for so long as Company qualifies for such “disregarded entity” status.
Accordingly, during such period, profits and losses shall be reported directly by the person that constitutes Company’s
single owner under and for purposes of such regulations. If at any time Company’s separate existence from its owners is
not disregarded under such regulations, profits and losses shall be reported for federal income tax purposes in accordance with
Company’s then applicable entity classification status under the Code.
Section
7.3.
MAINTENANCE OF BOOKS AND RECORDS
. Company shall maintain at its
principal place of business separate books of account for Company which shall show a true and accurate record of all costs and
expenses incurred, all charges made, all credits made and received, and all income derived in connection with the conduct of Company
and the operation of Company business in accordance with this Agreement.
Section
7.4.
ACCESS TO BOOKS AND RECORDS
. The Member, or any agents or representatives of the Member, at the Member’s
own expense, may examine, copy and audit the books and records of Company and make copies of and abstracts from the financial
and operating records and books of account of Company, and discuss the affairs, finances and accounts of Company with the independent
accountants of Company, all at such reasonable times and as often as the Member or any agents or representatives of the Member
may reasonably request. The rights granted to the Member pursuant to this Section 7.4 are expressly subject to compliance by the
Member with the confidentiality procedures and guidelines of Company, as such procedures and guidelines may be established from
time to time.
Section
7.5.
ACCOUNTING METHOD
. Company shall use that method of accounting which is used by the Member in the
preparation of its annual reports and for tax purposes and shall keep its books accordingly, except as may otherwise be
required by applicable Law or the Member otherwise determines is necessary or appropriate.
Section
7.6.
FISCAL YEAR
. Company’s fiscal year may be changed from time to time by resolution of the Member. Unless
otherwise designated by the Member, Company’s fiscal year shall end on the same date on which the fiscal year of the Member
ends.
Section
7.7.
TAX RETURNS
. Company shall furnish the Member with such items as may be required under and in accordance with
applicable tax law. Upon written request by the Member, Company also shall either allow the Member an opportunity to review, or
furnish to the Member a copy of, the income tax returns filed by Company, together with any schedules and other information that
are relevant to the Member’s own tax affairs.
Section
7.8.
BANKING
. All funds of Company shall be deposited in Company’s name, in such account or accounts with
such financial institutions as may be approved by the Member from time to time. Withdrawals of funds from Company accounts shall
be made on such signature or signatures as the Member may approve from time to time.
Section
7.9.
DEPOSITS, CHECKS, AND DRAFTS
. All Company funds not otherwise employed shall be deposited to the credit of
Company in such banks, trust companies, or other depositories as the Member may select from time to time. All checks, drafts,
or other orders for the payment of monies, notes or other evidences of indebtedness issued in the name of Company shall be signed
by such officer, officers, agent or agents of Company and in such manner as shall from time to time be determined by resolution
of the Member.
Article
8
TRANSFERS
The Member may Transfer all or any
portion of its Membership Rights. A transferee of Membership Rights may be admitted to Company as a substituted member upon approval
of the Member.
Article
9
MISCELLANEOUS
Section
9.1.
AMENDMENTS
. Amendments to this Agreement or the Certificate may be made by the Member.
Section
9.2.
ENTIRE AGREEMENT
. This Agreement sets forth the entire agreement entered into with respect to the subject matter
hereof and supersedes all prior agreements and understandings with respect to the subject matter hereof.
Section
9.3.
BINDING EFFECT
. Every covenant, term, and provision of this Agreement shall be binding upon and inure to the
benefit of the Member and its respective heirs, legatees, legal representatives, successors, transferees, and assigns.
Section
9.4.
DEFINITIONS
. For purposes of this Agreement, the terms set forth in this Agreement shall have the meanings
specified in
Exhibit A
to this Agreement. Unless the context shall require otherwise: (a) words importing the singular
number or plural number shall include the plural number and singular number respectively; (b) words importing the masculine gender
shall include the feminine and neuter genders and vice versa; (c) reference to “include,” “includes,”
and “including” shall be deemed to be followed by the phrase “without limitation”; (d) reference in this
Agreement to “herein,” “hereby” or “hereunder,” or any similar formulation, shall be deemed
to refer to this Agreement as a whole, including all Exhibits to this Agreement; (e) references to “Articles” and
“Sections” refer to Articles and Sections of this Agreement; and (f) references to “Exhibits” are to the
Exhibits attached to this Agreement, each of which is made a part hereof for all purposes.
Section
9.5.
HEADINGS
. Section and other headings contained in this Agreement are for reference purposes only and are not
intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.
Section
9.6.
SEVERABILITY
. Every provision of this Agreement is intended to be severable, and, if any term or provision
of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
Section
9.7.
GOVERNING LAW & VENUE
. THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE VALIDITY OF THIS AGREEMENT, THE
CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION OF THE RIGHTS AND DUTIES ARISING HEREUNDER.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned
has executed this Agreement effective as of the Effective Date.
|
|
LUCAS ENERGY, INC.
|
|
|
(AS THE SOLE MEMBER AND THE MANAGING MEMBER)
|
|
|
|
|
|
By:
|
/s/ Anthony C. Schnur
|
|
|
|
Anthony C. Schnur, CEO
|
EXHIBIT A
LEI OPERATING LLC
LIMITED LIABILITY COMPANY AGREEMENT
DEFINITIONS
As used in this Agreement, the following
terms have the meanings set forth below:
“
Affiliate
” means,
with respect to any Person, (i) any Person directly or indirectly controlling, controlled by, or under common control with such
Person, (ii) any officer, director, manager, or general partner of such Person, or (iii) any Person who is an officer, director,
manager, general partner, or trustee of any Person described in clauses (i) and (ii) of this sentence. For purposes of this definition,
the term “controls,” “is controlled by,” or “is under common control with” shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether
through the ownership of voting securities, by contract or otherwise.
“
Agreement
” has
the meaning set forth in the introductory paragraph.
“Business Day”
means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the State of Texas are closed.
“Certificate”
means
the Certificate of Formation filed with the Secretary of State of the State of Texas on May 2, 2014 for purposes of organizing
Company under the TBOC.
“
Code
” means the
Internal Revenue Code of 1986, as amended, modified or supplemented from time to time (or any corresponding provisions of succeeding
law).
“Company”
means
LEI Operating LLC, the Texas limited liability company formed and governed pursuant to the terms and conditions of the Certificate
and this Agreement.
“Day”
means a
calendar day;
provided
,
however
, that, if any period of Days referred to in this Agreement shall end on a Day that
is not a Business Day, then the expiration of such period shall be automatically extended until the first succeeding Business Day.
“Dissolution Event”
has the meaning set forth in Section 1.6.
“
Effective Date”
means the date first set forth above.
“Interest”
means
a Person’s share of the income, gain, loss, deduction and credits of, and the right to receive distributions from, Company.
“Law”
means any
applicable constitutional provision, statute, act, code, law, regulation, rule, ordinance, order, decree, ruling, proclamation,
resolution, judgment, decision, declaration, or interpretative or advisory opinion or letter of any governmental authority (including
the TBOC and the Code).
“
Liquidator
” means
the Person selected by the Member to carry out the dissolution, winding up and liquidation of the Company.
“Member”
means
LUCAS ENERGY, INC., a Nevada corporation and the sole member of the Company.
“Membership Rights”
means with respect to the Member, (a) the Member’s status as a Member; (b) the Member’s Interest; (c) all other rights,
benefits and privileges enjoyed by the Member (under the TBOC, the Certificate, this Agreement or otherwise) in his capacity as
a Member, including the Member’s rights to vote, consent and approve and otherwise to participate in the management of Company;
and (d) all obligations, duties and liabilities imposed on the Member (under the TBOC, the Certificate, this Agreement or otherwise)
in his capacity as a Member, including any obligations to make Capital Contributions.
“Net Cash Flow”
means all cash funds derived from Company’s operations or otherwise held by the Company, without reduction for any non-cash
charges, but less cash funds used to pay current operating expenses and to pay or establish reasonable reserves for future expenses,
debt payments (including loans made to Company by the Member), capital improvements, and replacements as determined by the Member
in its sole discretion.
“Person”
means
any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee,
or other entity.
“
TBOC
” means the
Texas Business Organizations Code, as amended, modified or supplemented from time to time (or any corresponding provisions of succeeding
law), including applicable provisions of the TLLCL.
“
TLLCL
” means
the Texas Limited Liability Company Law, which comprises a part of the TBOC, as amended, modified or supplemented from time to
time (or any corresponding provisions of succeeding law).
“
Transfer
” means,
as a noun, any voluntary or involuntary, direct or indirect, transfer, sale, assignment, gift, pledge, hypothecation, encumbrance
or other disposition and, as a verb, voluntarily or involuntarily, directly or indirectly, to transfer, sell, assign, give, pledge,
hypothecate, encumber or otherwise dispose of an item. With respect to Membership Rights, the term Transfer shall refer to all
or any part of the beneficial ownership of, the voting power associated with, or any other right, power, or interest in, the Membership
Rights.
[END OF EXHIBIT A]
Camber Energy, Inc. - S-3
Exhibit 4.28
CAMBER
ENERGY, INC.
and
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated
as of
SENIOR
DEBT SECURITIES
CAMBER
ENERGY, INC.
Reconciliation
and tie between Trust Indenture Act of 1939
and Indenture dated as of _________________
Section of Trust
Indenture Act of 1939
|
Section(s) of
of
Indenture
|
|
|
|
|
§ 310
|
(a)(1)
|
609
|
|
|
(a)(2)
|
609
|
|
|
(a)(3)
|
Not Applicable
|
|
|
(a)(4)
|
Not Applicable
|
|
|
(b)
|
608, 610
|
|
§ 311
|
(a)
|
613
|
|
|
(b)
|
613
|
|
|
(c)
|
Not Applicable
|
|
§ 312
|
(a)
|
701, 702
|
|
|
(b)
|
702
|
|
|
(c)
|
702
|
|
§ 313
|
(a)
|
703
|
|
|
(b)
|
703
|
|
|
(c)
|
703
|
|
|
(d)
|
703
|
|
§ 314
|
(a)
|
704, 105
|
|
|
(b)
|
Not Applicable
|
|
|
(c)(1)
|
102
|
|
|
(c)(2)
|
102
|
|
|
(c)(3)
|
Not Applicable
|
|
|
(d)
|
Not Applicable
|
|
|
(e)
|
102
|
|
§ 315
|
(a)
|
601
|
|
|
(b)
|
602
|
|
|
(c)
|
601
|
|
|
(d)
|
601
|
|
|
(d)(1)
|
603
|
|
|
(d)(2)
|
603
|
|
|
(d)(3)
|
601
|
|
|
(e)
|
514
|
|
§ 316
|
(a)(1)(A)
|
512
|
|
|
(a)(1)(B)
|
513
|
|
|
(a)(2)
|
Not Applicable
|
|
|
(a)(last sentence)
|
101
|
|
|
(b)
|
508
|
|
§ 317
|
(a)(1)
|
503
|
|
|
(a)(2)
|
504
|
|
|
(b)
|
1003
|
|
§ 318
|
(a)
|
107
|
Note: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TRUST
INDENTURE
Table
of Contents
Page
|
ARTICLE
One DEFINITIONS
|
1
|
|
Section
101. Definitions
|
1
|
|
Section
102. Compliance Certificates and Opinions
|
7
|
|
Section
103. Form of Documents Delivered to Trustee
|
8
|
|
Section
104. Acts of Holders; Record Dates
|
8
|
|
Section
105. Notices, Etc., to Trustee and Company
|
10
|
|
Section
106. Notice to Holders; Waiver
|
10
|
|
Section
107. Conflict with Trust Indenture Act
|
11
|
|
Section
108. Effect of Headings and Table of Contents
|
11
|
|
Section
109. Successors and Assigns
|
11
|
|
Section
110. Separability Clause
|
11
|
|
Section
111. Benefits of Indenture
|
12
|
|
Section
112. Governing Law
|
12
|
|
Section
113. Legal Holidays
|
12
|
|
Section
114. Language of Notices, Etc
|
12
|
|
Section
115. Submission to Jurisdiction
|
12
|
|
Section
116. Corporate Obligation
|
12
|
|
ARTICLE
Two SECURITY FORMS
|
13
|
|
Section
201. Forms Generally
|
13
|
|
Section
202. Form of Legend for Global Securities
|
13
|
|
Section
203. Form of Trustee’s Certificate of Authentication
|
14
|
|
Section
204. Securities in Global Form
|
14
|
|
ARTICLE
Three THE SECURITIES
|
15
|
|
Section
301. Amount Unlimited; Issuable In Series
|
15
|
|
Section
302. Denominations
|
18
|
|
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
|
24
|
|
Section
309. Cancellation
|
24
|
|
Section
310. Computation of Interest
|
24
|
|
Section
311. CUSIP Numbers
|
24
|
|
ARTICLE
Four SATISFACTION AND DISCHARGE
|
24
|
|
Section
401. Satisfaction and Discharge of Indenture
|
24
|
|
Section
402. Application of Trust Money
|
26
|
|
ARTICLE
Five REMEDIES
|
26
|
|
Section
501. Events of Default
|
26
|
|
Section
502. Acceleration of Maturity; Rescission and Annulment
|
27
|
|
Section
503. Collection of Indebtedness and Suits for Enforcement by Trustee
|
28
|
|
Section
504. Trustee May File Proofs of Claim
|
29
|
|
Section
505. Trustee May Enforce Claims Without Possession of Securities
|
30
|
|
Section
506. Application of Money Collected
|
30
|
|
Section
507. Limitation on Suits
|
30
|
|
Section
508. Unconditional Right of Holders to Receive Principal, Premium and Interest
|
31
|
|
Section
509. Restoration of Rights and Remedies
|
31
|
|
Section
510. Rights and Remedies Cumulative
|
31
|
|
Section
511. Delay or Omission Not Waiver
|
31
|
|
Section
512. Control by Holders
|
32
|
|
Section
513. Waiver of Past Defaults
|
32
|
|
Section
514. Undertaking for Costs
|
32
|
|
Section
515. Waiver of Stay or Extension Laws
|
33
|
|
ARTICLE
Six THE TRUSTEE
|
33
|
|
Section
601. Certain Duties and Responsibilities
|
33
|
|
Section
602. Notice of Defaults
|
34
|
|
Section
603. Certain Rights of Trustee
|
34
|
|
Section
604. Not Responsible for Recitals or Issuance of Securities
|
37
|
|
Section
605. May Hold Securities
|
37
|
|
Section
606. Money Held in Trust
|
37
|
|
Section
607. Compensation and Reimbursement
|
37
|
|
Section
608. Conflicting Interests
|
38
|
|
Section
609. Corporate Trustee Required; Eligibility
|
38
|
|
Section
610. Resignation and Removal; Appointment of Successor
|
38
|
|
Section
611. Acceptance of Appointment by Successor
|
40
|
|
Section
612. Merger, Conversion, Consolidation or Succession to Business
|
41
|
|
Section
613. Preferential Collection of Claims Against Company
|
42
|
|
Section
614. Appointment of Authenticating Agent
|
39
|
|
ARTICLE
Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
43
|
|
Section
701. Company to Furnish Trustee Names and Addresses of Holders
|
43
|
|
Section
702. Preservation of Information; Communications to Holders
|
44
|
|
Section
703. Reports by Trustee
|
44
|
|
Section
704. Reports by Company
|
44
|
|
ARTICLE
Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
45
|
|
Section
801. Company May Consolidate, Etc., Only on Certain Terms
|
45
|
|
Section
802. Successor Substituted
|
46
|
|
ARTICLE
Nine SUPPLEMENTAL INDENTURES
|
46
|
|
Section
901. Supplemental Indentures Without Consent of Holders
|
46
|
|
Section
902. Supplemental Indentures With Consent of Holders
|
47
|
|
Section
903. Execution of Supplemental Indentures
|
48
|
|
Section
904. Effect of Supplemental Indentures
|
48
|
|
Section
905. Conformity with Trust Indenture Act
|
48
|
|
Section
906. Reference in Securities to Supplemental Indentures
|
49
|
|
ARTICLE
Ten COVENANTS
|
49
|
|
Section
1001. Payment of Principal, Premium and Interest
|
49
|
|
Section
1002. Maintenance of Office or Agency
|
49
|
|
Section
1003. Money for Securities Payments to be Held in Trust
|
50
|
|
Section
1004. Statement by Officers as to Default
|
51
|
|
Section
1005. Existence
|
51
|
|
Section
1006. Waiver of Certain Covenants
|
51
|
|
Section
1007. Additional Amounts
|
51
|
|
ARTICLE
Eleven REDEMPTION OF SECURITIES
|
52
|
|
Section
1101. Applicability of Article
|
52
|
|
Section
1102. Election to Redeem; Notice to Trustee
|
52
|
|
Section
1103. Selection by Trustee of Securities to be Redeemed
|
53
|
|
Section
1104. Notice of Redemption
|
53
|
|
Section
1105. Deposit of Redemption Price
|
54
|
|
Section
1106. Securities Payable on Redemption Date
|
54
|
|
Section
1107. Securities Redeemed in Part
|
55
|
|
Section
1108. Purchase of Securities
|
55
|
|
ARTICLE
Twelve SINKING FUNDS
|
55
|
|
Section
1201. Applicability of Article
|
55
|
|
Section
1202. Satisfaction of Sinking Fund Payments with Securities
|
56
|
|
Section
1203. Redemption of Securities for Sinking Fund
|
56
|
|
ARTICLE
Thirteen LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
56
|
|
Section
1301. Company’s Option to Effect Legal Defeasance or Covenant Defeasance
|
56
|
|
Section
1302. Legal Defeasance and Discharge
|
56
|
|
Section
1303. Covenant Defeasance
|
57
|
|
Section
1304. Conditions to Legal Defeasance or Covenant Defeasance
|
57
|
|
Section
1305. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous
Provisions
|
59
|
|
Section
1306. Reinstatement
|
59
|
|
Section
1307. Deposited Money and Government Obligations to be Held in Trust
|
60
|
|
ARTICLE
Fourteen MEETING OF HOLDERS OF SECURITIES
|
60
|
|
Section
1401. Purposes for which Meetings may be Called
|
60
|
|
Section
1402. Call, Notice and Place of Meetings
|
60
|
|
Section
1403. Persons Entitled to Vote at Meetings
|
61
|
|
Section
1404. Quorum; Action
|
61
|
|
Section
1405. Determination of Voting Rights; Conduct and Adjournment of Meetings
|
62
|
|
Section
1406. Counting Votes and Recording Action of Meetings
|
63
|
INDENTURE,
dated as of _______________, 201 __, between Camber Energy, Inc., a corporation duly organized and existing under the laws of
the State of Nevada (herein called the “
Company
”), having its principal office at 450 Gears Road, Suite 860,
Houston, Texas 77067, and Wells Fargo Bank, National Association, a national banking association organized under the laws of the
United States,, as Trustee (herein called the “
Trustee
”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein called the “
Securities
”), which may
be convertible into or exchangeable for any securities of any Persons (including the Company), to be issued in one or more series
as in this Indenture provided.
All
things necessary to make this Indenture a valid and legally binding 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
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 United States generally
accepted accounting principles; the term “
generally accepted accounting principles
” with respect to
any computation required or permitted hereunder shall mean such accounting principles as are generally accepted as consistently
applied by the Company at the date of such computation;
(4)
unless the context otherwise requires, any reference to an “Article”, a “Section” or an “Exhibit”
refers to an Article, a Section or an Exhibit, as the case may be, of or to this Indenture; and
(5)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain
terms, used principally in
Article Six
and
Article Thirteen
, are defined in those Articles.
“
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.
“
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.
“
Authorized
Newspaper
” means a newspaper, in the English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation
in each place in connection with which the term is used or in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any Business Day.
“
Board
of Directors
” means either the board of directors of the Company or any duly authorized committee of that board.
“
Board
Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered
to the Trustee.
“
Business
Day
”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order
to close.
“
Commission
”
means the United States 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 the United States Securities and Exchange 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.
“
Company
”
means the Person named as the “
Company
” in the first paragraph of this Indenture 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, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“
Corporate
Trust Office
” means the principal office of the Trustee at which at any particular time its corporate trust business
related to this Indenture shall be administered, which as of the date hereof is located at Wells Fargo Bank, National Association,
750 N. Saint Paul Place, Suite 1750, Dallas, Texas 75201, or such other address as the Trustee may designate from time to time
by notice to the Company.
“
corporation
”
means a corporation, association, company, joint-stock company or business trust.
“
covenant
defeasance
” has the meaning specified in
Section 1303
.
“
Defaulted
Interest
” has the meaning specified in
Section 307
.
“
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 United States 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 202
(or such legend as may be specified as contemplated by
Section 301
for such
Securities).
“
Government
Obligation
” has the meaning specified in
Section 1304
.
“
Holder
”
means the Person in whose name the 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 United States Investment Company Act of 1940 and any statute successor thereto, in each case
as amended from time to time.
“
legal
defeasance
” has the meaning specified in
Section 1302
.
“
Maturity
”,
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
“
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, a Vice Chairman of the Board, the President
or an executive Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, 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 a written opinion from legal counsel who is reasonably acceptable to the Trustee, who may be counsel
for or an employee of the Company.
“
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 legal defeasance has been effected pursuant to
Section 1302
; and
(4)
Securities that have been paid pursuant to
Section 1001
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 or whether a quorum is present at a meeting of Holders of Securities,
(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 that 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 that 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 or any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice, consent, waiver, or other action, or upon any such
determination as to the presence of a quorum, only Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
“
Paying
Agent
” means any Person, which may include the Company, 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, limited liability company, 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 specified in accordance
with
Section 301
where the principal of and any premium and interest on the Securities of that series are payable.
“
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
.
“
Responsible
Officer
”, when used with respect to the Trustee, means any vice president, any assistant treasurer, any trust officer
or assistant trust officer or any other officer of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
“
Securities
”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture
provided, however,
that if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not Trustee.
“
Securities
Act
” means the United States 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
.
“
Special
Record Date
” for the payment of any Defaulted Interest means a date fixed by the Company 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
”
means a corporation, limited liability company, limited partnership, or other entity more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, “voting stock” means the equity interest that ordinarily
has voting power for the election of directors, managers, trustees or general partners of an entity, or persons performing similar
functions, whether at all times or only so long as no senior class of equity interest has such voting power by reason of any contingency.
“
Trust
Indenture Act
” means the United States 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 Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean
or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
United
States Alien
” means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members
of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
“
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 presiden
t
”.
Section
102.
Compliance Certificates and Opinions.
Upon
any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with. Each such certificate or opinion shall be given in the form
of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates
provided for in
Section 1004
) 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 may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, 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.
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 may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “
Act
” of the Holders signing such instrument or instruments, and 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 which the Trustee deems sufficient.
The
principal amount and serial numbers of Securities held by any Person, and the date of holding the same, 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 that sets such record date 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 that 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.
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 shall be sufficient for every purpose hereunder if made, given, furnished or filed
in writing (which may be via facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration,
or
(2)
the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by the Company.
Section
106.
Notice to Holders; Waiver.
Except
as otherwise expressly provided herein, where this Indenture provides for notice of any event to Holders of Securities, such notice
shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each Holder of
a Security affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such
notice to Holders of Securities by mail, then such notification as shall be made in a manner directed by the Company or as provided
in a supplemental indenture hereto shall constitute a sufficient notification for every purpose hereunder. In any case where notice
to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders.
Where
this Indenture provides for notice of any event (including any notice of redemption) to any Holder of a Global Security (whether
by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its designee),
according to the applicable procedures of the Depositary, if any, prescribed for the giving of such notice.
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
of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section
107.
Conflict
with Trust Indenture Act.
This
Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that 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 that may be so modified
or excluded, the former 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 shall bind its successors and assigns, whether so expressed or not.
Section
110.
Separability
Clause.
In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section
111.
Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section
112.
Governing
Law; Waiver of Jury Trial.
This
Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York. THE COMPANY,
THE TRUSTEE, AND EACH HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
113.
Legal
Holidays.
In
any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (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 or Redemption Date, or at
the Stated Maturity; provided, however, that no interest will accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business Day if such payment is made on such Business Day.
Section
114.
Language of Notices, Etc.
Any
request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official language of the country of publication.
Section
115.
Submission to Jurisdiction.
The
Company irrevocably submits to the non-exclusive jurisdiction of any federal or state court in the City, County and State of New
York, United States, and any appellate court from any thereof, in any legal suit, action or proceeding based on or arising under
the Securities or this Indenture and agrees that all claims in respect of such suit or proceeding may be determined in any such
court. The Company irrevocably waives to the fullest extent permitted by law, any objection to any such suit, including actions,
suits or proceedings relating to the securities laws of the United States of America or any state thereof, in such courts whether
on the grounds of venue, residence or domicile or the defense of an inconvenient forum or objections to personal jurisdiction
with respect to the maintenance of such legal suit, action or proceeding. The Company agrees that the final judgment in any such
suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court
to the jurisdiction of which the Company is subject by a suit upon such judgment.
Section
116.
Corporate Obligation.
No
recourse may be taken, directly or indirectly, against any incorporator, subscriber to the capital stock, stockholder, officer,
director or employee of the Company or the Trustee or of any predecessor or successor of the Company or the Trustee with respect
to the Company’s obligations on the Securities or the obligations of the Company or the Trustee under this Indenture or
any certificate or other writing delivered in connection herewith.
Section
117.
Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
ARTICLE
Two
SECURITY FORMS
Section
201.
Forms Generally.
The
Securities of each series shall be in substantially the form of forms 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 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 (or any such temporary global Security).
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 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
203.
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.
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Wells Fargo Bank, National Association.,
As Trustee
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By:
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Authorized
Signatory
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Dated:
____________________________ ”
Section
204.
Securities in Global Form.
If
Securities of or within a series are issuable in global form, as specified as contemplated by
Section 301
,
then any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303
or
Section 304
.
Subject to the provisions of
Section 303
and, if applicable,
Section 304
, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303
or
Section 304
has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply with
Section 102
and need not
be accompanied by an Opinion of Counsel.
The
provisions of the last sentence of
Section 303
shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global
from together with written instructions (which need not comply with
Section 102
and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with
the written statement contemplated by the last sentence of
Section 303
.
Notwithstanding
the provisions of
Section 307
, unless otherwise specified as contemplated by
Section 301
,
payment of principal of and any premium and interest on any Security in permanent global form shall be made to the Person or Persons
specified therein.
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, including CUSIP numbers, if applicable (which shall distinguish the Securities of the
series from Securities of any other series);
(2)
any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107
and except for any Securities
which, pursuant to
Section 303
, are deemed never to have been authenticated and delivered hereunder);
(3)
the Trustees, Authenticating Agents, Paying Agents, Security Registrars or other agents with respect to the series;
(4)
the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the
extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in
Section 304
;
(5)
the date or dates on which the principal of the Securities of the series is payable;
(6)
the ability to issue additional Securities in the same series;
(7)
the price or prices at which the Securities will be sold;
(8)
the right, if any, to extend the interest payment periods and the duration of any such deferral period, including the maximum
consecutive period during which interest payment periods may be extended;
(9)
provisions, if any, granting special rights to holders of the Securities upon the occurrence of specified events;
(10)
the terms, if any, upon which Holders may convert or exchange (or upon which the Company may require Holders to convert or exchange)
the Securities of the series into or for the common stock, preferred stock or other securities or property of the Company or of
another Person (or upon which the Securities of the series shall automatically convert or be exchanged into or for such other
securities or property);
(11)
the rate or rates at which the Securities of the series shall bear interest, if any, which may be fixed or variable, or the method
by which such rate shall be determined, the date or dates from which any such interest shall accrue, or the method by which such
date or dates will be determined, the Interest Payment Dates on which any such interest shall be payable, and the Regular Record
Date for the interest payable on any Securities on any Interest Payment Date;
(12)
in the case of Original Issue Discount Securities, the rate of accretion of principal, which may be fixed or variable, or the
method of determining such rate, and the date or dates from which principal will accrete or the method by which such date or dates
will be determined;
(13)
the place or places where, subject to the provisions of
Section 1002
, the principal of and any premium, if
any, and interest, if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that
are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture may be served;
(14)
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 (including whether the redemption may be made conditional
upon events occurring after the delivery or publication of the notice of redemption) and, if other than by a Board Resolution,
the manner in which any election by the Company to redeem the Securities shall be evidenced;
(15)
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 Holders 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, repaid or purchased, in whole or in part, pursuant
to such obligation;
(16)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series
shall be issuable;
(17)
whether the amount of payments of principal (or premium, if any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or
more currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(18)
the currency or currencies, including currency units or composite currencies, in which payment of the principal of and any premium
and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of
“
Outstanding
” in
Section 101
;
(19)
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);
(20)
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
;
(21)
the collateral, if any, securing the Securities of the series, and the guarantors, if any, who will guarantee the Securities of
the series, or the methods of determining such collateral, if any, and such guarantors, if any;
(22)
whether the amount of principal, premium, if any, and interest on the Securities of the series may be determined by reference
to an index, formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the manner
in which such amounts shall be determined;
(23)
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);
(24)
if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to
Section 1302
or Section 1303
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;
(25)
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 Depositaries 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 202
and any circumstances
in addition to or in lieu of those set forth in the legend set forth in
Section 202
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;
(26)
any addition to or change in the Events of Default which apply 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
;
(27)
any addition to or change in the covenants set forth in
Article Ten
which applies to Securities of the series, including
any limitation on the Company’s ability to incur debt, redeem stock or sell its assets;
(28)
whether, under what circumstances and the currency in which the Company will pay additional amounts as contemplated by
Section 1007
on the Securities of the series to any Holder who is not a United States Person(s) (including any modification to the
definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts (and the terms of any such option);
(29)
provisions, if any, granting special rights to holders of Securities of the series upon the occurrence of specified events; and
(30)
any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted
by
Section 901 or 902
), including the stated intervals of time the Trustee shall be required to transmit reports
pursuant to Section 313(a) of the Act.
All
Securities of such series shall be substantially identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution or supplemental indenture 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.
Section
302.
Denominations.
Unless
otherwise provided as contemplated by
Section 301
with respect to the Securities of any series, any Securities
of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section
303.
Execution, Authentication, Delivery
and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President
or one of its executive Vice Presidents, 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 to the Trustee for authentication, together with a Company Order for the authentication and delivery of
such Securities, an Officer’s Certificate, and an Opinion of Counsel, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities. If the forms 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 receive,
and (subject to
Section 601
) shall be fully protected in conclusively relying upon, an Opinion of Counsel stating,
(1)
if the forms of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 201
,
that such forms have 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 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 principles of equity.
If
the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion
of Counsel shall also state that all conditions precedent to the execution of the supplemental indenture with respect to that
series of Securities have been complied with, the Company has the power to execute and deliver such supplemental indenture and
has taken all necessary action for those purposes and any such supplemental indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company enforceable in accordance with its 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. 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, liabilities or immunities under the
Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding
the provisions of
Section 301
and of the two preceding paragraphs, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant
to
Section 301
or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs
at or prior to the 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 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 in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
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 that 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 like aggregate
principal amount and tenor.
Until
exchanged in full as hereinafter provided, the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
Section
305.
Registration, Registration of Transfer
and Exchange.
The
Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with
Section 1002
a register (being the combined register of the Security Registrar and all transfer agents designated pursuant to
Section 1002
for the purpose of registration of transfer of Securities and sometimes collectively referred to as the “
Security
Register
”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the registration of transfers of Securities. The Trustee is hereby appointed “
Security
Registrar
” for the purpose of registering Securities and transfers of Securities as herein provided.
Except
as otherwise provided in
Section 203
or as may be provided as contemplated by
Section 301
,
upon surrender for registration of transfer of any Security of a series at the office or agency of the Company maintained pursuant
to
Section 1002
for such purpose in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 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, and the Trustee shall authenticate
and deliver, the Securities that 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
or any transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company
and the Security Registrar or any transfer agent duly executed, by the Holder thereof or his attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant to
Section 304, 906 or 1107
not involving any transfer.
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
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 any selection of Securities of that series to be redeemed
and ending at the close of business on the day of the delivery of the relevant notice of redemption.
The
transferor shall also provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply
with any applicable tax reporting obligations, including without limitation, any cost basis reporting obligations under Section
6045 of the United States Internal Revenue Code of 1986, as amended (the “Code”). The Trustee may rely on any such
information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
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.
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, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding
the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
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 or payment 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
”) after any applicable grace period 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 (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 Company 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
Company shall promptly notify the Trustee of such Special Record Date and, in the name and at the expense of the Company, the
Trustee 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 sent, 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 and
Section 305
, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section
308.
Persons Deemed Owners.
Prior
to due presentment of a Security at maturity, redemption or for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such 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 305 and Section 307
)
any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section
309.
Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee 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 the Trustee’s customary manner.
Section
310.
Computation of Interest.
Except
as otherwise specified as contemplated by
Section 301
for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section
311.
CUSIP Numbers.
The
Company in issuing the Securities may use “
CUSIP
” numbers, ISINs and “
Common Code
”
numbers (in each case if then generally in use), and, if so, the Trustee shall use such “
CUSIP
” numbers,
ISINs and “Common Code” numbers in notices of redemption as a convenience to Holders;
provided
that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will notify
the Trustee in writing of any change in “
CUSIP
” numbers, ISINs or “
Common Code
”
numbers.
ARTICLE
Four
SATISFACTION AND DISCHARGE
Section
401.
Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for, and any right to receive additional amounts, as provided in
Section 1007
),
and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1)
either
(A)
all Securities theretofore authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in
Section 306
and Securities 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 not theretofore delivered to the Trustee for cancellation:
(i)
have become due and payable, or
(ii)
will become due and payable at their Stated Maturity within one year, or
(iii)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose money in an amount sufficient 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 has paid or caused to be paid all other sums payable hereunder by the Company; 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 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 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 such satisfaction and discharge.
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 and (if so established
as contemplated by
Section 301
in respect of that series), in the case of technical or administrative difficulties
only if such default persists for a period of five days; or
(3)
default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4)
default in the performance, or breach, of any covenant or warranty of the Company 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 90 days after there has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “
Notice
of Default
” hereunder; or
(5)
the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6)
the commencement by the Company 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, of the consent
by it to the entry of a decree or order for relief in respect of the Company 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 the filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it 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 or of any substantial
part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due; or
(7)
any other Event of Default provided with respect to Securities of that series.
Section
502.
Acceleration of Maturity; Rescission
and Annulment.
If
an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6))
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) shall become immediately due and payable. If an Event of Default specified in
Section 501(5) or 501(6)
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) 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 has paid or deposited with the Trustee a sum sufficient to pay
(A)
all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(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 overdue interest on all Securities of that series ; 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 pay to the Trustee, 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
the Company fails to pay such amounts forthwith, the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever
situated.
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 reasonably necessary 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 the pendency of any receivership, insolvency, liquidation bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of
Original Issue Discount Securities) of the Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal
(and premium, if any) or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1)
to file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities)
(and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2)
to collect and receive any monies 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
.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceedings;
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 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 or property 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 or property 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 hereunder to
the Trustee (acting in any capacity hereunder);
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:
To the Company.
Section
507.
Limitation on Suits.
Subject
to
Section 508
, 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)
an Event of Default with respect to Securities of such series shall have occurred and be continuing and 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 an indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that series;
it
being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section
508.
Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to
Sections 305 and 307
) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section
509.
Restoration of Rights and Remedies.
If
the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder; then and
in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders 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.
Subject
to
Section 603(5)
, with respect to the Securities of any series, 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,
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, or
(2)
in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon
any such waiver, such default 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.
All
parties to this Indenture agree and each Holder of any Security by his acceptance thereof shall be deemed to have agreed that
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 including reasonable attorneys’ fees and expenses against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act;
provided
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 the Trustee.
Section
515.
Waiver of Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE
Six
THE TRUSTEE
Section
601.
Certain Duties and Responsibilities.
The
duties and responsibilities of the Trustee shall be as provided in this Indenture and by the Trust Indenture Act.
(a)
Except during the continuance of an Event of Default with respect to Securities of any series of which a Responsible Officer of
the Indenture Trustee has actual knowledge,
(i) the
Trustee undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b) If
an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this
subsection shall not be construed to limit the effect of sub-section (a) of this Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any one or more series,
as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series;
and
(4) 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.
(d) 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 that is actually known to a Responsible Officer of the
Trustee, 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. The Trustee may withhold from the Holders notice of any continuing default, except a Default
relating to the payment of principal, premium, if any, or interest, if it withholding such notice would be in the interest of
Holders. 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 conclusively rely and shall be fully 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 (whether in its original or facsimile form) 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 negligence or bad faith on its part, conclusively rely upon an Officers’ Certificate;
(4)
the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(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 security
or indemnity satisfactory to it 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;
(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;
(8)
the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9)
the Trustee shall not be deemed to have, or required to take, notice of any default or Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture and
specifies that such notice is a notice of an Event of Default;
(10)
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and the Person employed to act hereunder;
(11)
the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded;
(12)
the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(13)
in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action;
(14)
the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise
in respect of this indenture;
(15)
under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the securities;
(16)
the Trustee shall not be liable or responsible for any action or inaction of the Depositary or any other clearinghouse or depositary;
(17)
the Trustee shall have no obligation to undertake any calculation hereunder or have any liability for any calculation performed
in connection herewith or the transactions contemplated hereunder;
(18)
the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its control, including acts of God; earthquakes; fire;
flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities,
computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and
governmental action; and
(19)
for certain payments made pursuant to this Indenture, the Trustee may be required to make a “reportable payment” or
“withholdable payment” and in such cases the Trustee shall have the duty to act as a payor or withholding agent, respectively,
that is responsible for any tax withholding and reporting required under Chapters 3, 4 and 61 of the Code. The Trustee shall have
the sole right to make the determination as to which payments are “reportable payments” or “withholdable payments.”
All parties to this Indenture shall provide an executed IRS Form W-9 or appropriate IRS Form W-8 (or, in each case, any successor
form) to the Trustee prior to closing, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate
in any respect. The Trustee shall have the right to request from any party to this Indenture, or any other Person entitled to
payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Trustee to
satisfy its reporting and withholding obligations under the Code. To the extent any such forms to be delivered under this Section
603 are not provided prior to or by the time the related payment is required to be made or are determined by the Trustee to be
incomplete and/or inaccurate in any respect, the Trustee shall be entitled to withhold on any such payments hereunder to the extent
withholding is required under Chapters 3, 4 or 61 of the Code, and shall have no obligation to gross up any such payment.
Section
604.
Not Responsible for Recitals or Issuance
of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. 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, 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 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 or investment on any money received by it hereunder except as otherwise agreed in writing
with the Company.
Section
607.
Compensation and Reimbursement.
The
Company agrees
(1)
to pay to the Trustee (acting in any capacity hereunder) from time to time such compensation for all services rendered by it hereunder
as shall be agreed in writing between the Company and the Trustee (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 and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee (acting in any capacity hereunder) 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 shall be determined by a court of competent jurisdiction to have been caused
by its own negligence or willful misconduct; and
(3)
to indemnify the Trustee (acting in any capacity hereunder) and any predecessor Trustee for, to protect and to hold it harmless
against, any and all loss, liability claim, damage or expense, including taxes (other than those based upon, measured by or determined
by the income of the Trustee), incurred without negligence or willful misconduct 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 (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section.
This
Section shall survive the termination of the Indenture and the resignation or removal of the Trustee.
To
secure the payment obligations of the Company in this Section 607, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to pay principal and interest on any particular
Securities. Such lien shall survive the satisfaction and discharge of this Indenture.
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 the Trust Indenture 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 resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee with respect to the Securities
of such series.
The
Trustee may be removed upon 30 days prior written notice 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 an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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 the successor trustee takes office, 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 of Securities of such
series 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.
Notwithstanding
replacement of the Trustee pursuant to this Section 610, the Company’s obligations under Section 607 shall continue for
the benefit of the retiring Trustee.
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 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 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 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
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided
such corporation
shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. 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 (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of
Section 311
of the Trust Indenture Act, but only to the extent therein specified,
regarding the collection of claims against the Company (or any such other obligor). For purposes of
Section 311(b)(4)
and (6)
of such Act, the following terms shall mean:
(a)
“
cash transaction
” means any transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers
and payable upon demand; and
(b)
“
self-liquidating paper
” means any draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage
or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security,
provided
the security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance
or obligation.
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 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. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee,
and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, 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
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating
Agent,
provided
such corporation shall be otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or 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
Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If
an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the
following form:
“This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Wells Fargo Bank, National Association.,
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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If
all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities
of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need
not comply with
Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint in accordance
with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE
Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
701.
Company to Furnish Trustee Names
and Addresses of Holders.
With
respect to each series of the Securities, the Company will furnish or cause to be furnished to the Trustee
(1)
semi-annually, not later than 10 days after each Regular Record Date or in the case of any series of Securities on which semi-annual
interest is not payable, not more than 15 days after such semi-annual dates specified by the Trustee, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the Regular Record
Date or such semi-annual date, as the case may be, 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;
provided,
that
so long as the Trustee is the Security Registrar, the Company shall not be required to furnish or cause to be furnished
such a list to the Trustee. The Company shall otherwise comply with Section 310(a) of the Trust Indenture Act.
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 nor
the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with this
Section 702
, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to
a request made under this
Section 702
. The Company, the Trustee, the Security Registrar and any other Person
shall have the protection of Section 312(c) of 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, including Sections 313(a),
313(b), 313(c) and 313(d) of the Trust Indenture Act.
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 in writing
when any Securities are listed on any stock exchange or delisted therefrom.
Section
704.
Reports by Company.
The
Company 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 so required to be
filed with the Commission. The Company shall otherwise comply with Section 314(a) of the Trust Indenture Act.
Delivery
of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise,
the Company’s compliance with the covenants or with respect to any reports or other documents delivered under this Indenture.
Further, the Trustee shall have liability or responsibility for the filing, timeliness or content of any report filed or delivered
in connection herewith.
ARTICLE
Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
801.
Company May Consolidate, Etc., Only
on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person (other than a direct or indirect wholly-owned subsidiary of the Company) and the Company shall not
permit any Person (other than a direct or indirect wholly-owned subsidiary of the Company) to consolidate with or merge into the
Company, unless:
(1)
the Company is the surviving corporation or, in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation, limited liability company, partnership or trust, 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 (including all additional amounts, if any payable pursuant
to
Section 1007
) 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 after giving 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 conveyance, transfer or lease, 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 such successor Person, 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; and
(4)
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease 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.
Successor Substituted.
Upon
any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in accordance with
Section 801
, the successor
Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made
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.
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, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(1)
to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2)
to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3)
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series); or
(4)
to add to, 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 to make any other provisions with respect to matters or questions arising under this Indenture,
provided
that
such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect as evidenced
by an Officers’ Certificate.
Section
902.
Supplemental Indentures With Consent
of Holders.
With
the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, 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 change any obligation
of the Company to pay additional amounts pursuant to
Section 1007
(except as contemplated by
Sections 801
and 802
and permitted by
Section 901(1))
, 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 the coin or currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3)
change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in
Section 1002
,
or
(4)
modify any of the provisions of this Section,
Section 513 or Section 1006
, 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 901
, or deletion of this proviso, in accordance with the requirements of
Sections 611
and 901(7)
.
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 of Securities 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.
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 receive, and (subject to
Section 601
) shall
be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company enforceable against it in accordance with its terms. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects the Trustee’s owner’s rights, duties,
liabilities 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 Company, bear a notation in form approved by the Company 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 Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE
Ten
COVENANTS
Section
1001.
Payment of Principal, Premium
and Interest.
The
Company covenants and agrees for the benefit of Holders 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 Trustee or the Paying
Agent holds as of 11:00 a.m. Eastern time, on the due date money deposited by the Company in immediately available funds and designated
for and sufficient to pay the principal, premium, if any, and interest then due, and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section
1002.
Maintenance of Office or
Agency.
The
Company will maintain in each Place of Payment for any series an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency.
If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or
shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Securities of that series may
be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the same as its agent to receive such respective presentations, surrenders, notices and demands; provided, however, no service
of legal process may be made on the Company at any office of the Trustee. The Company may also from time to time designate one
or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however,
that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities
of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Section
1003.
Money for Securities Payments
to be Held in Trust.
If
the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it 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 or 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 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 the principal
and any premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, 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 (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.
Subject
to applicable unclaimed property or “escheat laws,” any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and
remaining unclaimed for two years after such principal and any 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.
Section
1004.
Statement by Officers as
to Default.
The
Company 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 is in default
in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. The Company shall deliver to the Trustee, as soon as reasonably
practicable and in any event within 20 days after the Company becomes aware of the occurrence of any 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.
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 its
existence, rights (charter and statutory) and franchises;
provided, however,
that the Company shall not be required to
preserve any such right or franchise if the Board of Directors 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
ability of the Company to make payments hereunder.
Section
1006.
Waiver of Certain Covenants.
Except
as otherwise specified as contemplated by
Section 301
for Securities of such series and as contemplated by
Section 508
, the Company may, with respect to the Securities of any series, omit in any particular instance
to comply with any term, provision or condition set forth in this Indenture for the benefit of the Holders of such series if before
the time for such compliance the Holders of at least 50% 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.
Section
1007.
Additional Amounts.
If
the Securities of a series provide for the payment of additional amounts, the Company will pay to the Holder of any Security of
such series additional amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express
mention is not made.
If
the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity,
the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned
Officers’ Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of
Securities of that series who are United States Aliens without withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate
shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company
will pay to the Trustee or such Paying Agent the additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, to protect and to hold them harmless against, any loss, liability, damage or expense reasonably
incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
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, by delivering
an Officers’ Certificate at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series
to be redeemed and, if applicable, of the tenor of the Securities to be redeemed (unless all of the Securities of a specified
tenor are to be redeemed). In the case of any redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with such restriction or condition.
Section
1103.
Selection 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 not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method in accordance with the Depository’s applicable procedures and which may
provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount of global securities of such series. If less
than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series
and 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.
Section
1104.
Notice of Redemption.
Notice
of redemption shall be given in the manner provided in
Section 106
to the Holders of Securities to be redeemed
not less than 30 nor more than 60 days prior to the Redemption Date, except that notices of redemption may be sent more than 60
days prior to a redemption date if the notice is issued in connection with the defeasance or satisfaction and discharge of this
Indenture.
All
notices of redemption shall identify the Securities and state:
(1)
the Redemption Date,
(2)
the Redemption Price,
(3)
if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed
and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date (unless the Company defaults in the timely deposit of the Redemption
Price),
(5)
the place or places where such Securities are to be surrendered for payment of the Redemption Price,
(6)
that the redemption is for a sinking fund, if such is the case, and
(7)
applicable CUSIP number, ISIN or “Common Code” number, if any, and that no representation is made by the Trustee as
to the correctness or accuracy of the CUSIP number, ISIN or “Common Code” number, if any, listed in such notice or
printed on the Securities.
A
notice of redemption published as contemplated by
Section 106
need not identify particular registered Securities
to be redeemed.
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.
In
case of any redemption at the election of the Company, the Company will, at least 10 days (unless a shorter notice will be satisfactory
to the Trustee) prior to the notice date, notify the Trustee of such Redemption Date.
Section
1105.
Deposit of Redemption Price.
Prior
to 11:00 a.m. Eastern time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003
) 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 interests on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of
Section 307
.
If
any 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, 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.
Section
1108.
Purchase of Securities.
Unless
otherwise specified as contemplated by
Section 301
, the Company and any Affiliate of the Company may at any
time purchase or otherwise acquire Securities in the open market or by private agreement. Such acquisition shall not operate as
or be deemed for any purpose to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall be
deemed to be satisfied.
Section 309
shall apply to all Securities so delivered.
ARTICLE
Twelve
SINKING FUNDS
Section
1201.
Applicability of Article.
The
provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by
Section 301
for such Securities.
The
minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202
. Each sinking fund
payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
Section
1202.
Satisfaction of Sinking Fund
Payments with Securities.
The
Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required
to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section
1203.
Redemption of Securities
for Sinking Fund.
Not
less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) 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 1202
and will also deliver to the Trustee any Securities to be so delivered. The Trustee shall select
any Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 1103
and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104
. Such notice having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in
Sections 1106 and 1107
.
ARTICLE
Thirteen
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section
1301.
Company’s Option to
Effect Legal Defeasance or Covenant Defeasance.
The
Company may at its option, at any time elect to have either
Section 1302 or Section 1303
applied to the
Outstanding Securities of any series upon compliance with the conditions set forth below in this
Article Thirteen
.
Section
1302.
Legal Defeasance and Discharge.
Upon
the Company’s exercise of the option provided in
Section 1301
applicable to this Section, the Company
shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of any series on the date
the conditions set forth below are satisfied (hereinafter, “
legal defeasance
”). For this purpose, such
legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and
this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of the Securities of such series to receive, solely from the trust fund described in
Section 1304
and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on the
Securities of such series when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003
, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s obligations related thereto and (D) this
Article Thirteen
. Subject to compliance
with this Article Thirteen, the Company may exercise its option under this
Section 1302
notwithstanding the
prior exercise of its option under
Section 1303
.
Section
1303.
Covenant Defeasance.
Upon
the Company’s exercise of the option provided in
Section 1301
applicable to this Section, (i) the Company
shall be released from its obligations with respect to the Securities of such series under
Section 801, Section 1006
and
Section 1007
and any covenants provided pursuant to
Section 301
for the benefit of
the Holders of such Securities (to the extent so provided pursuant to
Section 301
) and (ii) the occurrence
of an event specified in
Sections 501(3) or (4)
shall not be deemed to be an Event of Default on and after
the date the conditions set forth below are satisfied (hereinafter, “
covenant defeasance
”). For this
purpose, such covenant defeasance means that the Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or clause whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or clause or by reason of any reference in any such Section or clause to any other provision
herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section
1304.
Conditions to Legal Defeasance
or Covenant Defeasance.
The
following shall be the conditions to application of either
Section 1302
or
Section 1303
to the then Outstanding Securities of any series:
(1)
The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of
Section 609
who shall agree to comply with the provisions of this Article Thirteen applicable to it) as
trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm expressed
in a written certification thereof delivered to the Trustee, (if such firms at such time customarily deliver such certifications,
and, if not, such certification may be from the principal financial officer of the Company), to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and each installment
of interest on the Securities on the Stated Maturity of such principal or installment of interest in accordance with the terms
of this Indenture and of the Securities of such series. For this purpose, “
Government Obligations
” means,
with respect to any series of Securities, securities that are (x) direct obligations of the government that issued the currency
in which such series is denominated (or, if such series is denominated in euro, the direct obligations of any government that
is a member of the European Monetary Union) for the payment of which its full faith and credit is pledged or (y) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally
guaranteed as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at
the option of the issuer thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any Government Obligation where the relevant government is the United States
of America or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the
account of the holder of such depositary receipt,
provided
that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian
in respect of such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced
by such depository receipt.
(2)
In the event of an election to have
Section 1302
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 (x) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been
a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
(3)
In the event of an election to have
Section 1303
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 the Outstanding
Securities of such series 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 had not occurred.
(4)
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, together stating that
all conditions precedent provided for relating to either the legal defeasance under
Section 1302
or the covenant
defeasance under
Section 1303
(as the case may be) have been complied with.
(5)
Such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act, or such trust shall be qualified under such act or exempt from regulation thereunder.
Section
1305.
Deposited Money and Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of
Section 1003
, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee (solely for purposes of this Section and
Section 1306
,
the Trustee and any such other trustee are referred to collectively, for purposes of this
Section 1305
, as
the “
Trustee
”) pursuant to
Section 1304
in respect of the Securities of such series
shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities of such series and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of the Securities of such series, of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required
by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to
Section 1304
or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities.
Anything
in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations held by it as provided in
Section 1304
which, in the opinion
of a nationally recognized firm of independent public accountants (or a nationally recognized investment banking firm or the principal
financial officer of the Company, as appropriate) expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
Section
1306.
Reinstatement.
If
the Trustee or the Paying Agent is unable to apply any money in accordance with
Section 1302 or 1303
by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this
Article Thirteen
until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with
Section 1302
or
1303
;
provided, however,
that if the Company makes any payment of principal of (and premium, if any) or interest on any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of the Securities of such series to receive such
payment from the money held by the Trustee or the Paying Agent.
Section
1307.
Deposited Money and Government
Obligations to be Held in Trust.
Subject
to the provisions of the last paragraph of
Section 1003
, all money and Government Obligations (or other property
as may be provided pursuant to
Section 301
) (including the proceeds thereof) deposited with the Trustee pursuant
to
Section 1304
in respect of any Securities of any series 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 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, premium, if any, and interest, if any, but such money need not
be segregated from other funds except as provided herein and except to the extent required by law.
ARTICLE
Fourteen
MEETING OF HOLDERS OF SECURITIES
Section
1401.
Purposes for which Meetings
may be Called.
A
meeting of Holders of Securities of any or all series of Securities may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be made, given or taken by Holders of Securities of such series.
Section
1402.
Call, Notice and Place of
Meetings.
(a)
The Trustee may at any time call a physical or telephonic meeting of Holders of Securities of any series for any purposes specified
in
Section 1401
, to be held at any such time and at such place. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 106
, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b)
In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a physical or telephonic meeting of the Holders of Securities
of such series for any purpose specified in
Section 1401
and have provided sufficient funds to cover the costs
for the delivery of notice of such meeting, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided
in subsection (a) of this Section.
Section
1403.
Persons Entitled to Vote
at Meetings.
Upon
the calling of a meeting of Holders with respect to the Securities of a series all or part of which are represented by a Security,
a record date shall be established for determining Holders of Outstanding Securities of such series entitled to vote at such meeting,
which record date shall be the close of business on the day the notice of the meeting of Holders is given in accordance with
Section 1402
.
The Holders on such record date, and their designated proxies, and only such Persons, shall be entitled to vote at such meeting
of Holders. To be entitled to vote at any meeting of Holders, a Person shall (a) be a Holder of one or more Securities or (b)
be a Person appointed by an instrument in writing as proxy by a Holder of one or more Securities;
provided, however,
that
in the case of any meeting of Holders with respect to the Securities of a series all or part of which are represented by a Security,
only Holders, or their designated proxies, of record on the record date established pursuant to
Section 1403
hereof shall be entitled to vote at such meeting. The only Persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
Section
1404.
Quorum; Action.
The
Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for
a meeting of Holders of Securities of such series;
provided, however,
that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than 50% in
principal amount of the Outstanding Securities of a series, the Persons entitled to vote 50% in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1402(a)
,
except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except
as limited by the proviso to the first paragraph of
Section 902
, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series;
provided, however,
that, except as limited by the proviso
to the first paragraph of
Section 902
, any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than 50% in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of 50% in principal amount of the Outstanding Securities of that series; and
provided
,
further
,
that, except as limited by the proviso to the first paragraph of
Section 902
, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or any adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any
resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented
at the meeting.
Section
1405.
Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as is shall
deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved
in the manner specified in
Section 104
and the appointment of any proxy shall be proved in the manner specified
in
Section 104
or by having the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by
Section 104
. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in
Section 104
or other proof.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1402(b)
, in which case the Company
or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting.
(c)
At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount
of the Outstanding Securities of such series held or represented by him;
provided, however,
that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d)
Any meeting of Holders of Securities of any series duly called pursuant to
Section 1402
at which a quorum is
present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section
1406.
Counting Votes and Recording
Action of Meetings.
The
vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall
be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was given as provided in
Section 1402
and,
if applicable,
Section 1404
. Each copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
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.
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CAMBER ENERGY, INC.
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By:
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Name:
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Title:
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WELLS
FARGO BANK, NATIONAL ASSOCIATION, Trustee
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By:
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Name:
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Title:
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Camber Energy, Inc. - S-3
Exhibit 4.29
CAMBER
ENERGY, INC.
and
WELLS FARGO BANK, N
ational
ASSOCIATION
Trustee
INDENTURE
Dated as of
DEBT SECURITIES
(S
ubordinated
D
ebt
)
Camber Energy, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939
and Indenture dated as of _________________
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Section of Trust
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Section(s) of
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Indenture Act of 1939
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of Indenture
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§ 310
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(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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608, 610
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§ 311
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(a)
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613
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(b)
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613
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(c)
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Not Applicable
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§ 312
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(a)
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701, 702
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(b)
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702
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(c)
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702
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§ 313
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(a)
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703
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(b)
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703
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(c)
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703
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(d)
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703
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§ 314
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(a)
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704, 105
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(b)
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Not Applicable
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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§ 315
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(a)
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601
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(b)
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602
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(c)
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601
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(d)
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601
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(d)(1)
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603
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(d)(2)
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603
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(d)(3)
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601
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(e)
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514
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§ 316
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(a)(1)(A)
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512
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(a)(1)(B)
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513
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(a)(2)
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Not Applicable
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(a)(last sentence)
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101
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(b)
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508
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§ 317
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(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§ 318
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(a)
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107
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Note: This reconciliation and tie shall not,
for any purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS
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1
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Section 101.
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Definitions
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1
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Section 102.
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Compliance Certificates and Opinions
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8
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Section 103.
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Form of Documents Delivered to Trustee
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8
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Section 104.
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Acts of Holders; Record Dates
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9
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Section 105.
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Notices, Etc., to Trustee and Company
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11
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Section 106.
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Notice to Holders; Waiver
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11
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Section 107.
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Conflict with Trust Indenture Act
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12
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Section 108.
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Effect of Headings and Table of Contents
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12
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Section 109.
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Successors and Assigns
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12
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Section 110.
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Separability Clause
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12
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Section 111.
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Benefits of Indenture
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12
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Section 112.
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Governing Law
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12
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Section 113.
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Legal Holidays
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13
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Section 114.
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Language of Notices, Etc.
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13
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Section 115.
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Submission to Jurisdiction
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13
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Section 116.
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Corporate Obligation
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13
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ARTICLE TWO SECURITY FORMS
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14
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Section 201.
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Forms Generally
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14
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Section 202.
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Form of Legend for Global Securities
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14
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Section 203.
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Form of Trustee’s Certificate of Authentication
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14
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Section 204.
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Securities in Global Form
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15
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ARTICLE THREE THE SECURITIES
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16
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Section 301.
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Amount Unlimited; Issuable In Series
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16
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Section 302.
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Denominations
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19
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Section 303.
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Execution, Authentication, Delivery and Dating
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19
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Section 304.
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Temporary Securities
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21
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Section 305.
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Registration, Registration of Transfer and Exchange
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22
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Section 306.
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Mutilated, Destroyed, Lost and Stolen Securities
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23
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Section 307.
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Payment of Interest; Interest Rights Preserved
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24
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Section 308.
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Persons Deemed Owners
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25
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Section 309.
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Cancellation
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25
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Section 310.
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Computation of Interest
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25
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Section 311.
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CUSIP Numbers
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25
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ARTICLE FOUR SATISFACTION AND DISCHARGE
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26
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Section 401.
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Satisfaction and Discharge of Indenture
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26
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Section 402.
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Application of Trust Money
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27
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ARTICLE FIVE REMEDIES
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27
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Section 501.
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Events of Default
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27
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Page
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Section 502.
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Acceleration of Maturity; Rescission and Annulment
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28
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Section 503.
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Collection of Indebtedness and Suits for Enforcement
by Trustee
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28
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Section 504.
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Trustee May File Proofs of Claim
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30
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Section 505.
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Trustee May Enforce Claims Without Possession
of Securities
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31
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Section 506.
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Application of Money Collected
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31
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Section 507.
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Limitation on Suits
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31
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Section 508.
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Unconditional Right of Holders to Receive Principal,
Premium and Interest
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32
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Section 509.
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Restoration of Rights and Remedies
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32
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Section 510.
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Rights and Remedies Cumulative
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32
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Section 511.
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Delay or Omission Not Waiver
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32
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Section 512.
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Control by Holders
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33
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Section 513.
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Waiver of Past Defaults
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33
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Section 514.
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Undertaking for Costs
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33
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Section 515.
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Waiver of Stay or Extension Laws
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33
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ARTICLE SIX THE TRUSTEE
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34
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Section 601.
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Certain Duties and Responsibilities
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34
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Section 602.
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Notice of Defaults
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35
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Section 603.
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Certain Rights of Trustee
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35
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Section 604.
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Not Responsible for Recitals or Issuance of
Securities
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37
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Section 605.
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May Hold Securities
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38
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Section 606.
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Money Held in Trust
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38
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Section 607.
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Compensation and Reimbursement
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38
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Section 608.
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Conflicting Interests
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39
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Section 609.
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Corporate Trustee Required; Eligibility
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39
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Section 610.
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Resignation and Removal; Appointment of Successor
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39
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Section 611.
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Acceptance of Appointment by Successor
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41
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Section 612.
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Merger, Conversion, Consolidation or Succession
to Business
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42
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Section 613.
|
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Preferential Collection of Claims Against Company
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42
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Section 614.
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Appointment of Authenticating Agent
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42
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ARTICLE SEVEN HOLDERS’ LISTS
AND REPORTS BY TRUSTEE AND COMPANY
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44
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Section 701.
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Company to Furnish Trustee Names and Addresses
of Holders
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44
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Section 702.
|
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Preservation of Information; Communications
to Holders
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44
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Section 703.
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Reports by Trustee
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45
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Section 704.
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Reports by Company
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45
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ARTICLE EIGHT CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
|
46
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Section 801.
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Company May Consolidate, Etc., Only on Certain
Terms
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46
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Section 802.
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Successor Substituted
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47
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ARTICLE NINE SUPPLEMENTAL INDENTURES
|
47
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Section 901.
|
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Supplemental Indentures Without Consent of Holders
|
47
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Section 902.
|
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Supplemental Indentures With Consent of Holders
|
48
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Page
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Section 903.
|
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Execution of Supplemental Indentures
|
48
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Section 904.
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Effect of Supplemental Indentures
|
48
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Section 905.
|
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Conformity with Trust Indenture Act
|
48
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Section 906.
|
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Reference in Securities to Supplemental Indentures
|
48
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ARTICLE TEN COVENANTS
|
50
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Section 1001.
|
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Payment of Principal, Premium and Interest
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50
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Section 1002.
|
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Maintenance of Office or Agency
|
50
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Section 1003.
|
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Money for Securities Payments to be Held in
Trust
|
50
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Section 1004.
|
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Statement by Officers as to Default
|
51
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Section 1005.
|
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Existence
|
52
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Section 1006.
|
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Waiver of Certain Covenants
|
52
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Section 1007.
|
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Additional Amounts
|
52
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
|
53
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Section 1101.
|
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Applicability of Article
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53
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Section 1102.
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Election to Redeem; Notice to Trustee
|
53
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Section 1103.
|
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Selection by Trustee of Securities to be Redeemed
|
53
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Section 1104.
|
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Notice of Redemption
|
54
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Section 1105.
|
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Deposit of Redemption Price
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55
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Section 1106.
|
|
Securities Payable on Redemption Date
|
55
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Section 1107.
|
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Securities Redeemed in Part
|
56
|
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Section 1108.
|
|
Purchase of Securities
|
56
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ARTICLE TWELVE SINKING FUNDS
|
56
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Section 1201.
|
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Applicability of Article
|
56
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Section 1202.
|
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Satisfaction of Sinking Fund Payments with Securities
|
56
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Section 1203.
|
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Redemption of Securities for Sinking Fund
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57
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ARTICLE THIRTEEN LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
|
57
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Section 1301.
|
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Company’s Option to Effect Legal Defeasance
or Covenant Defeasance
|
57
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Section 1302.
|
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Legal Defeasance and Discharge
|
57
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Section 1303.
|
|
Covenant Defeasance
|
58
|
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Section 1304.
|
|
Conditions to Legal Defeasance or Covenant Defeasance
|
58
|
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Section 1305.
|
|
Deposited Money and Government Obligations to
be Held in Trust;Other Miscellaneous Provisions
|
60
|
|
Section 1306.
|
|
Reinstatement
|
60
|
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Section 1307.
|
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Deposited Money and Government Obligations to
be Held in Trust
|
60
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ARTICLE FOURTEEN SUBORDINATION OF
SECURITIES
|
61
|
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Section 1401.
|
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Securities Subordinate to Senior Debt
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61
|
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Section 1402.
|
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Payment Over of Proceeds Upon Dissolution, Etc.
|
61
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Section 1403.
|
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Default on Senior Debt
|
62
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Section 1404.
|
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Acceleration of Securities
|
62
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Section 1405.
|
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Payments to be held in Trust
|
62
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Section 1406.
|
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Subrogation to Rights of Holders of Senior Debt
|
62
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Page
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Section 1407.
|
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Provisions Solely to Define Relative Rights
|
63
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Section 1408.
|
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Trustee to Effectuate Subordination
|
63
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Section 1409.
|
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No Waiver of Subordination Provisions
|
63
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Section 1410.
|
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Notice to Trustee
|
64
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Section 1411.
|
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Reliance On Judicial Order or Certificate of Liquidating Agent
|
65
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Section 1412.
|
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Trustee Not Fiduciary for Holders of Senior Debt
|
65
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Section 1413.
|
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Rights of Trustee As Holder of Senior Debt; Preservation of Trustee’s Rights
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65
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Section 1414.
|
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Article Applicable to Paying Agents
|
65
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Section 1415.
|
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Certain Conversions or Exchanges Deemed Payment
|
66
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Section 1416.
|
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Defeasance of This Article Fourteen
|
66
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ARTICLE FIFTEEN MEETING OF HOLDERS OF SECURITIES
|
66
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Section 1501.
|
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Purposes for which Meetings may be Called
|
66
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Section 1502.
|
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Call, Notice and Place of Meetings
|
66
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Section 1503.
|
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Persons Entitled to Vote at Meetings
|
67
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Section 1504.
|
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Quorum; Action
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67
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Section 1505.
|
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Determination of Voting Rights; Conduct and Adjournment of Meetings
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68
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Section 1506.
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Counting Votes and Recording Action of Meetings
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68
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INDENTURE, dated as of __________,
200__ between Camber Energy, Inc., a corporation duly organized and existing under the laws of the State of Nevada (herein called
the “
Company
”), having its principal office at 450 Gears Road, Suite 860, Houston, Texas 77067 and Wells
Fargo Bank, National Association, a national banking association organized under the laws of the United States, as Trustee (herein
called the “
Trustee
”).
RECITALS OF THE COMPANY
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured, subordinated debentures,
notes or other evidences of indebtedness (herein called the “
Securities
”), which may be convertible into
or exchangeable for any securities of any Persons (including the Company), to be issued in one or more series as in this Indenture
provided.
All things necessary to make
this Indenture a valid and legally binding 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
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 United States generally accepted
accounting principles; the term “
generally accepted accounting principles
” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted as consistently applied by the
Company at the date of such computation;
(4)
unless
the context otherwise requires, any reference to an “Article”, a “Section” or an “Exhibit”
refers to an Article, a Section or an Exhibit, as the case may be, of or to this Indenture; and
(5)
the
words “
herein
,” “
hereof
” and “
hereunder
” and other
words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally
in
Article Six
and
Article Thirteen
, are defined in those Articles.
“
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.
“
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.
“
Authorized Newspaper
”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
“
Board of Directors
”
means either the board of directors of the Company or any duly authorized committee of that board.
“
Board Resolution
”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day
”,
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“
Commission
”
means the United States 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 the United States Securities and Exchange 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.
“
Company
”
means the Person named as the “
Company
” in the first paragraph of this Indenture 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, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
“
Corporate Trust
Office
” means the principal office of the Trustee at which at any particular time its corporate trust business related
to this Indenture shall be administered which as of the date hereof is located at Wells Fargo Bank, National Association, 750 N.
Saint Paul Place, Suite 1750, Dallas, Texas 75201, or such other address as the Trustee may designate from time to time by notice
to the Company.
“
corporation
”
means a corporation, association, company, joint-stock company or business trust.
“
covenant defeasance
”
has the meaning specified in
Section 1303
.
“
Defaulted Interest
”
has the meaning specified in
Section 307
.
“
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 United States 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 202
(or such legend as may be specified as contemplated by
Section 301
for such Securities).
“
Government Obligation
”
has the meaning specified in
Section 1304
.
“
Holder
”
means the Person in whose name the 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 United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended
from time to time.
“
Junior Securities
”
has the meaning specified in
Section 1415
.
“
legal defeasance
”
has the meaning specified in
Section 1302
.
“
Maturity
”,
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
“
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, a Vice Chairman of the Board, the President
or an executive Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
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 a written opinion from legal counsel who is reasonably acceptable to the Trustee, who may be counsel for or an employee of
the Company.
“
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 legal defeasance has been effected pursuant to
Section 1302
; and
(4)
Securities
that have been paid pursuant to
Section 1001
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 or whether a quorum is present at a meeting of Holders of Securities, (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 that 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 that 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 or any
other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver, or other action, or upon any such determination as to the presence of a quorum,
only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so
owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“
Paying Agent
”
means any Person, which may include the Company, 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, limited liability company, 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 specified in accordance with
Section 301
where the principal of and any premium and interest on the Securities of that series are payable.
“
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
.
“
Responsible Officer
”,
when used with respect to the Trustee, means any vice president, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
“
Securities
”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture
provided, however
, that if at any time there is more than one Person acting as Trustee under this Indenture,
“Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the
first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
“
Securities Act
”
means the United States 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
”
means all amounts due on obligations in connection with any of the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred or created: (i) the principal of (and premium, if any) and interest due on the Company’s
indebtedness for borrowed money and indebtedness evidenced by securities, debentures, bonds or other similar instruments issued
by the Company (including all mandatory obligations under repurchase agreements for the payment of the repurchase price for the
securities purchased pursuant thereto); (ii) any of the Company’s obligations as lessee under leases required to be capitalized
on the balance sheet of the lessee under generally accepted accounting principles; (iii) all of the Company’s obligations
for the reimbursement on any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction;
(iv) all of the Company’s obligations in respect of interest rate swap, cap or other agreements, interest rate future or
options contracts, currency swap agreements, currency future or option contracts and other similar agreements; (v) all obligations
of the types referred to above of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor
or otherwise; and (vi) all obligations of the types referred to above of other Persons secured by any lien on any property or asset
of the Company (whether or not such obligation is assumed by the Company);
provided however
, that the following will not
constitute Senior Debt: (a) any indebtedness which expressly provides (i) that such indebtedness shall not be senior in right of
payment to the Securities, or (ii) that such indebtedness shall be subordinated to any other indebtedness of the Company, unless
such indebtedness expressly provides that such indebtedness shall be senior in right of payment to the Securities; (b) any indebtedness
of the Company in respect of the Securities; (c) any indebtedness or liability for compensation to employees, for goods or materials
purchased in the ordinary course of business or for services; (d) any indebtedness of the Company to any Subsidiary; and (e) any
liability for federal, state, local or other taxes owed or owing by the Company.
“
Special Record Date
”
for the payment of any Defaulted Interest means a date fixed by the Company 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
”
means a corporation, limited liability company, limited partnership, or other entity more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, “
voting stock
” means the equity interest that
ordinarily has voting power for the election of directors, managers, trustees, or general partners of an entity, or persons performing
similar functions, whether at all times or only so long as no senior class of equity interest has such voting power by reason of
any contingency.
“
Trust Indenture
Act
” means the United States 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 Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
”
shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “
Trustee
”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
United States Alien
”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
“
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
”.
Section
102.
Compliance Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and opinions stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with. Each such certificate or opinion shall be given in the form of an Officers’ Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements
of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in
Section 1004
) 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 may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is in the possession of the Company,
unless such counsel knows, 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.
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
may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Except as herein otherwise expressly
provided,
such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
”
of the Holders signing such instrument or instruments, and 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 which the Trustee deems sufficient.
The principal amount and serial
numbers of Securities held by any Person, and the date of holding the same, 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 that sets such record date 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 that 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.
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 shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
(which may be via facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration; or
(2)
the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument, Attention: Chief Financial Officer, or at any other address previously furnished in
writing to the Trustee by the Company.
Section
106.
Notice to Holders; Waiver.
Except as otherwise expressly
provided herein, where this Indenture provides for notice of any event to Holders of Securities, such notice shall be sufficiently
given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by
such event, at the address of such Holder as it appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities
by mail, then such notification as shall be made in a manner directed by the Company or as provided in a supplemental indenture
hereto shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities
is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of
a Security shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides
for notice of any event (including any notice of redemption) to any Holder of a Global Security (whether by mail or otherwise),
such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), according to the applicable
procedures of the Depositary, if any, prescribed for the giving of such notice.
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 of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section
107.
Conflict with Trust Indenture Act.
This Indenture shall incorporate
and be governed by the provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified
under the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act
that 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 that may be so modified or excluded, the former
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 shall bind its successors and assigns, whether so expressed or not.
Section
110.
Separability Clause.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
111.
Benefits of Indenture.
Nothing in this Indenture or
in the Securities, 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 of Securities, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section
112.
Governing Law; Waiver of Jury Trial.
This Indenture and the Securities
shall be governed by and construed in accordance with the law of the State of New York. THE COMPANY, THE TRUSTEE, AND EACH HOLDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
113.
Legal Holidays.
In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities (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 or Redemption Date, or at the Stated Maturity; provided, however, that
no interest will accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, to such Business Day if such payment is made on such Business Day.
Section
114.
Language of Notices, Etc.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
Section
115.
Submission to Jurisdiction.
The Company irrevocably submits
to the non-exclusive jurisdiction of any federal or state court in the City, County and State of New York, United States, and any
appellate court from any thereof, in any legal suit, action or proceeding based on or arising under the Securities or this Indenture
and agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Company irrevocably waives
to the fullest extent permitted by law, any objection to any such suit, including actions, suits or proceedings relating to the
securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence
or domicile or the defense of an inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such
legal suit, action or proceeding. The Company agrees that the final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company
is subject by a suit upon such judgment.
Section
116.
Corporate Obligation.
No recourse may be taken, directly
or indirectly, against any incorporator, subscriber to the capital stock, stockholder, officer, director or employee of the Company
or the Trustee or of any predecessor or successor of the Company or the Trustee with respect to the Company’s obligations
on the Securities or the obligations of the Company or the Trustee under this Indenture or any certificate or other writing delivered
in connection herewith.
Section 117 Patriot Act. The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Article
Two
SECURITY FORMS
Section
201.
Forms Generally.
The Securities of each series
shall be in substantially the form of forms 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 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 (or any such
temporary global Security).
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 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
203.
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.
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Wells Fargo Bank, National Association,
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As Trustee
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By:
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Authorized Signatory
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Dated:
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“
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Section
204.
Securities in Global Form.
If Securities of or within a
series are issuable in global form, as specified as contemplated by
Section 301
, then any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner
and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to
Section 303
or
Section 304
. Subject to the provisions of
Section 303
and, if applicable,
Section 304
, the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to
Section 303
or
Section 304
has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need
not comply with
Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence
of
Section 303
shall apply to any Security represented by a Security in global form if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions
(which need not comply with
Section 102
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last
sentence of
Section 303
.
Notwithstanding the provisions
of
Section 307
, unless otherwise specified as contemplated by
Section 301
, payment of principal of
and any premium and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
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, including CUSIP numbers, if applicable (which shall distinguish the Securities of the series
from Securities of any other series);
(2)
any
limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to
Section 304, 305, 306, 906
or
1107
and except for any Securities which, pursuant
to
Section 303
, are deemed never to have been authenticated and delivered hereunder);
(3)
the
Trustees, Authenticating Agents, Paying Agents, Security Registrars or other agents with respect to the series;
(4)
the
Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the
extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in
Section 304
;
(5)
the
date or dates on which the principal of the Securities of the series is payable;
(6)
the
ability to issue additional Securities in the same series;
(7)
the
price or prices at which the Securities will be sold;
(8)
the
right, if any, to extend the interest payment periods and the duration of any such deferral period, including the maximum consecutive
period during which interest payment periods may be extended;
(9)
provisions,
if any, granting special rights to holders of the Securities upon the occurrence of specified events;
(10)
the
terms, if any, upon which Holders may convert or exchange (or upon which the Company may require Holders to convert or exchange)
the Securities of the series into or for the common stock, preferred stock or other securities or property of the Company or of
another Person (or upon which the Securities of the series shall automatically convert or be exchanged into or for such other securities
or property).
(11)
the
specific subordination provisions applicable to the Securities, if other than as set forth in
Article Fourteen
herein;
(12)
the
rate or rates at which the Securities of the series shall bear interest, if any, which may be fixed or variable, or the method
by which such rate shall be determined, the date or dates from which any such interest shall accrue, or the method by which such
date or dates will be determined, the Interest Payment Dates on which any such interest shall be payable, and the Regular Record
Date for the interest payable on any Securities on any Interest Payment Date;
(13) in
the case of Original Issue Discount Securities, the rate of accretion of principal, which may be fixed or variable, or the method
of determining such rate, and the date or dates from which principal will accrete or the method by which such date or dates will
be determined;
(14)
the
place or places where, subject to the provisions of
Section 1002
, the principal of and any premium, if any, and interest,
if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served;
(15)
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 (including whether the redemption may be made conditional upon
events occurring after the delivery or publication of the notice of redemption) and, if other than by a Board Resolution, the manner
in which any election by the Company to redeem the Securities shall be evidenced;
(16)
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 Holders 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, repaid or purchased, in whole or in part, pursuant
to such obligation;
(17)
if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall
be issuable;
(18)
whether
the amount of payments of principal (or premium, if any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or
more currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(19)
the
currency or currencies, including currency units or composite currencies, in which payment of the principal of and any premium
and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of
“
Outstanding
” in
Section 101
;
(20)
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);
(21)
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
;
(22)
the
collateral, if any, securing the Securities of the series, and the guarantors, if any, who will guarantee the Securities of the
series, or the methods of determining such collateral, if any, and such guarantors, if any;
(23)
whether
the amount of principal, premium, if any, and interest on the Securities of the series may be determined by reference to an index,
formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the manner in which
such amounts shall be determined;
(24)
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);
(25)
if
applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to
Section 1302
or
Section 1303
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;
(26)
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 Depositaries 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 202
and any circumstances in addition
to or in lieu of those set forth in the legend set forth in
Section 202
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;
(27)
any
addition to or change in the Events of Default which apply 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;
(28)
any
addition to or change in the covenants set forth in
Article Ten
which applies to Securities of the series, including
any limitation on the Company’s ability to incur debt, redeem stock or sell its assets;
(29)
whether,
under what circumstances and the currency in which the Company will pay additional amounts as contemplated by
Section 1007
on the Securities of the series to any Holder who is not a United States Person(s) (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts (and the terms of any such option);
(30)
provisions,
if any, granting special rights to holders of Securities of the series upon the occurrence of specified events; and
(31)
any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 901
or
902
), including the stated intervals of time the Trustee shall be required to transmit
reports pursuant to Section 313(a) of the Act.
All Securities of such series
shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution or supplemental indenture 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 shall be subordinated
in right of payment to Senior Debt as provided in
Article Fourteen
.
Section
302.
Denominations.
Unless otherwise provided as
contemplated by
Section 301
with respect to the Securities of any series, any Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section
303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed
on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its executive Vice
Presidents, 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
to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, an Officer’s
Certificate, and an Opinion of Counsel, and the Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the forms 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 receive, and (subject to
Section
601
) shall be fully protected in conclusively relying upon, an Opinion of Counsel stating,
(1)
if
the forms of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 201
,
that such forms have 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 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 principles of equity.
If the authentication and delivery
relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that
all conditions precedent to the execution of the supplemental indenture with respect to that series of Securities have been complied
with, the Company has the power to execute and deliver such supplemental indenture and has taken all necessary action for those
purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its 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.
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, liabilities or immunities under the Securities and this Indenture or otherwise in
a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions
of
Section 301
and of the two preceding paragraphs, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to
Section
301
or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the 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 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 in lieu of which they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
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 that 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 like aggregate principal amount and tenor.
Until exchanged in full as hereinafter
provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
Section
305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be
kept at an office or agency to be maintained by the Company in accordance with
Section 1002
a register (being the
combined register of the Security Registrar and all transfer agents designated pursuant to
Section 1002
for the purpose
of registration of transfer of Securities and sometimes collectively referred to as the “
Security Register
”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities
and the registration of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose
of registering Securities and transfers of Securities as herein provided.
Except as otherwise provided
in
Section 203
, or as may be provided as contemplated by
Section 301
, upon surrender for registration
of transfer of any Security of a series at the office or agency of the Company maintained pursuant to
Section 1002
for such purpose in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new 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, and the Trustee shall authenticate and deliver, the Securities that
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 or any transfer agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
or any transfer agent duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made
for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to
Section 304, 906
or
1107
not involving any transfer.
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 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 any selection of Securities of that series to be redeemed and ending at the close of
business on the day of the delivery of the relevant notice of redemption.
The transferor shall also provide
or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting
obligations, including without limitation, any cost basis reporting obligations under Section 6045 of the United States Internal
Revenue Code of 1986, as amended (the “Code”). The Trustee may rely on any such information provided to it and shall
have no responsibility to verify or ensure the accuracy of such information.
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.
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, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
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 or payment
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
”) after any applicable grace period 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 (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 Company 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 Company shall promptly notify
the Trustee of such Special Record Date and, in the name and at the expense of the Company, the Trustee 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 sent, 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 and
Section 305
, each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
308.
Persons Deemed Owners.
Prior to due presentment of a
Security at maturity, redemption or for registration of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such 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 305
and
Section 307
) any interest on
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section
309.
Cancellation.
All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee 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 the Trustee’s customary manner.
Section
310.
Computation of Interest.
Except as otherwise specified
as contemplated by
Section 301
for Securities of any series, interest on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section
311.
CUSIP Numbers.
The Company in issuing the Securities
may use “
CUSIP
” numbers, ISINs and “
Common Code
” numbers (in each case if then
generally in use), and, if so, the Trustee shall use such “
CUSIP
” numbers, ISINs and “
Common
Code
” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company will notify the Trustee in writing of
any change in “
CUSIP
” numbers, ISINs or “
Common Code
” numbers.
Article
Four
SATISFACTION AND DISCHARGE
Section
401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company
Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for, and any right to receive additional amounts, as provided in
Section 1007
), and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1)
either
(A)
all
Securities theretofore authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in
Section 306
and Securities 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 not theretofore delivered to the Trustee for cancellation:
(i)
have
become due and payable, or
(ii)
will
become due and payable at their Stated Maturity within one year, or
(iii)
are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose money in an amount sufficient 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 has paid or caused to be paid all other sums payable hereunder by the Company; 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 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 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 such satisfaction and discharge.
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 Fourteen
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 and (if so established as contemplated
by
Section 301
in respect of that series), in the case of technical or administrative difficulties only if such default
persists for a period of five days; or
(3)
default
in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4)
default
in the performance, or breach, of any covenant or warranty of the Company 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 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “
Notice
of Default
” hereunder; or
(5)
the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6)
the
commencement by the Company 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, of the consent by it to the
entry of a decree or order for relief in respect of the Company 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 the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it 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 or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due; or
(7)
any
other Event of Default provided with respect to Securities of that series.
Section
502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other
than an Event of Default specified in
Section 501(5)
or
501(6)
) 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) shall become immediately
due and payable. If an Event of Default specified in
Section 501(5)
or
501(6)
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) 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 has paid or deposited with the Trustee a sum sufficient to pay
(A)
all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel,
(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
overdue interest on all Securities of that series;
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 pay to the Trustee, 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 the Company fails to pay such
amounts forthwith, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
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 reasonably necessary 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 the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of Original Issue Discount
Securities) of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal (and premium, if any) or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to
file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to
collect and receive any monies 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
.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings;
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 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 or property
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 or property 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 hereunder to the Trustee (acting in any capacity hereunder);
SECOND: Subject to
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: To the Company.
Section
507.
Limitation on Suits.
Subject to
Section
508
, 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) an
Event of Default with respect to Securities of such series shall have occurred and be continuing and 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 an indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no
one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section
508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment
of the principal of and any premium and (subject to
Sections 305
and
307
) interest on such Security
on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section
509.
Restoration of Rights and Remedies.
If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder; then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and the Holders 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.
Subject to
Section
603(5)
, with respect to the Securities of any series, 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, 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, or
(2) in
respect of a covenant or provision hereof which under
Article Nine
cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver,
such default 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.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed that 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 including reasonable attorneys’ fees and expenses against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act;
provided 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 the Trustee.
Section
515.
Waiver of Stay or Extension Laws.
The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article
Six
THE TRUSTEE
Section
601.
Certain Duties and Responsibilities.
The duties and responsibilities
of the Trustee shall be as provided in this Indenture and by the Trust Indenture Act.
(a) Except during the
continuance of an Event of Default with respect to Securities of any series of which a Responsible Officer of the Indenture Trustee
has actual knowledge,
(i) the
Trustee undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(b) If
an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this
subsection shall not be construed to limit the effect of sub-section (a) of this Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any one or more series, as
provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) 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.
(d) 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 that is actually known to a Responsible Officer of the Trustee, 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. The Trustee may withhold from the Holders notice of any continuing default, except a Default relating to the
payment of principal, premium, if any, or interest, if it withholding such notice would be in the interest of Holders. 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 conclusively rely and shall be fully 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 (whether in its original or facsimile form) 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 negligence or bad faith on its part, conclusively rely upon an Officers’ Certificate;
(4) the
Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(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 security or indemnity satisfactory
to it 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;
(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;
(8) the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9) the
Trustee shall not be deemed to have, or required to take, notice of any default or Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture and specifies
that such notice is a notice of an Event of Default;
(10) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the
Person employed to act hereunder;
(11) the
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(12) the
permissive rights of the Trustee enumerated herein shall not be construed as duties;
(13) in
no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action;
(14) the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise in respect
of this indenture;
(15) under
no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the securities;
(16) the
Trustee shall not be liable or responsible for any action or inaction of the Depositary or any other clearinghouse or depositary;
(17) the
Trustee shall have no obligation to undertake any calculation hereunder or have any liability for any calculation performed in
connection herewith or the transactions contemplated hereunder;
(18) the
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its control, including acts of God; earthquakes; fire;
flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities,
computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental
action; and
(19) for
certain payments made pursuant to this Indenture, the Trustee may be required to make a “reportable payment” or “withholdable
payment” and in such cases the Trustee shall have the duty to act as a payor or withholding agent, respectively, that is
responsible for any tax withholding and reporting required under Chapters 3, 4 and 61 of the Code. The Trustee shall have the sole
right to make the determination as to which payments are “reportable payments” or “withholdable payments.”
All parties to this Indenture shall provide an executed IRS Form W-9 or appropriate IRS Form W-8 (or, in each case, any successor
form) to the Trustee prior to closing, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate
in any respect. The Trustee shall have the right to request from any party to this Indenture, or any other Person entitled to payment
hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Trustee to satisfy its
reporting and withholding obligations under the Code. To the extent any such forms to be delivered under this Section 603 are not
provided prior to or by the time the related payment is required to be made or are determined by the Trustee to be incomplete and/or
inaccurate in any respect, the Trustee shall be entitled to withhold on any such payments hereunder to the extent withholding is
required under Chapters 3, 4 or 61 of the Code, and shall have no obligation to gross up any such payment.
Section
604.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the Securities. 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, 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 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 or investment on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section
607.
Compensation and Reimbursement.
The Company agrees
(1) to
pay to the Trustee (acting in any capacity hereunder) from time to time such compensation for all services rendered by it hereunder
as shall be agreed in writing between the Company and the Trustee (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 and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee (acting in any capacity hereunder) 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 shall be determined by a court of competent jurisdiction to have been caused
by its own negligence or willful misconduct; and
(3) to
indemnify the Trustee (acting in any capacity hereunder) and any predecessor Trustee for, to protect and to hold it harmless against,
any and all loss, liability, claim, damage or expense, including taxes (other than those based upon, measured by or determined
by the income of the Trustee), incurred without negligence or willful misconduct 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 (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section.
This Section shall survive
the termination of the Indenture and the resignation or removal of the Trustee.
To secure the payment
obligations of the Company in this Section 607, the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal and interest on any particular Securities. Such lien
shall survive the satisfaction and discharge of this Indenture.
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 the Trust Indenture 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 resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
at the expense of the Company for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed
upon 30 days prior written notice 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 an instrument of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
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 the successor trustee takes office, 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 of Securities of such series
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.
Notwithstanding replacement
of the Trustee pursuant to this Section 610, the Company’s obligations under Section 607 shall continue for the benefit of
the retiring Trustee.
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 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 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 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 corporation into
which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of
the parties hereto. 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 (or any other obligor upon the Securities), the Trustee shall be subject to the provisions
of
Section 311
of the Trust Indenture Act, but only to the extent therein specified, regarding the collection of
claims against the Company (or any such other obligor). For purposes of
Section 311(b)(4)
and
(6)
of
such Act, the following terms shall mean:
(a) “
cash
transaction
” means any transaction in which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
and
(b) “
self-liquidating
paper
” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by
the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
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 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. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall
be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, 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 corporation into
which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act
on the part of the Trustee or 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 Company agrees to
pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with
respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition
to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
“This is one of
the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Wells Fargo Bank, National Association,
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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If all of the Securities
of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities
upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with
Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having
an office in a Place of Payment designated by the Company with respect to such series of Securities.
Article
Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
701.
Company to Furnish Trustee Names and Addresses of Holders.
With respect to each
series of the Securities, the Company will furnish or cause to be furnished to the Trustee
(1) semi-annually,
not later than 10 days after each Regular Record Date or in the case of any series of Securities on which semi-annual interest
is not payable, not more than 15 days after such semi-annual dates specified by the Trustee, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities of each series as of the Regular Record Date or
such semi-annual date, as the case may be, 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;
provided, that
so long as the Trustee
is the Security Registrar, the Company shall not be required to furnish or cause to be furnished such a list to the Trustee. The
Company shall otherwise comply with Section 310(a) of the Trust Indenture Act.
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 nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with this
Section 702
, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under this
Section
702
. The Company, the Trustee, the Security Registrar and any other Person shall have the protection of
Section 312(c)
of 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, including
Sections 313(a), 313(b), 313(c)
and
313(d)
of the Trust Indenture Act.
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 in writing when any Securities are listed
on any stock exchange or delisted therefrom.
Section
704.
Reports by Company.
The Company 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 so required to be filed
with the Commission. The Company shall otherwise comply with
Section 314(a)
of the Trust Indenture Act.
Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with
the covenants or with respect to any reports or other documents delivered under this Indenture. Further, the Trustee shall have
liability or responsibility for the filing, timeliness or content of any report filed or delivered in connection herewith.
Article
Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
801.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety
to any Person (other than a direct or indirect wholly-owned subsidiary of the Company), and the Company shall not permit any Person
(other than a direct or indirect wholly-owned subsidiary of the Company) to consolidate with or merge into the Company, unless:
(1) the
Company is the surviving corporation or, in case the Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation, limited liability company, partnership or trust, 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 (including all additional amounts, if any payable pursuant
to
Section 1007
) 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
after giving 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 conveyance, transfer or lease, 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 such successor Person, 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; and
(4) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease 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.
Successor Substituted.
Upon any consolidation
of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with
Section 801
, the successor Person formed by
such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made 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.
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, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to
add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series); or
(4) to
add to, 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 to make any other provisions with respect to matters or questions arising under this Indenture,
provided that
such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect as evidenced
by an Officers’ Certificate.
Section
902.
Supplemental Indentures With Consent of Holders.
With the consent of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, 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 change any obligation of
the Company to pay additional amounts pursuant to
Section 1007
(except as contemplated by
Sections 801
and
802
and permitted by
Section 901(1)
), 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 the coin or currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, or
(2) reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) change
any obligation of the Company to maintain an office or agency in the places and for the purposes specified in
Section 1002
,
or
(4) modify
any of the provisions of this Section,
Section 513
or
Section 1006
, 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 901
, or deletion of this proviso, in accordance with the requirements of
Sections 611
and
901(7)
.
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 of Securities 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.
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 receive, and (subject to
Section 601
) shall be fully protected in conclusively
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that such supplemental indenture constitutes the legal, valid and binding obligation
of the Company enforceable against it in accordance with its terms. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee’s owner’s rights, duties, liabilities 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 Company, bear a notation in form approved by the Company 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 Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
Article
Ten
COVENANTS
Section
1001.
Payment of Principal, Premium and Interest.
The Company covenants
and agrees for the benefit of Holders 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 Trustee or the Paying Agent holds as of 11:00 a.m.
Eastern time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to
pay the principal, premium, if any, and interest then due, and the Trustee or the Paying Agent, as the case may be, is not prohibited
from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section
1002.
Maintenance of Office or Agency.
The Company will maintain
in each Place of Payment for any series an office or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the same as its agent
to receive such respective presentations, surrenders, notices and demands; provided, however, no service of legal process may be
made on the Company at any office of the Trustee. The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations;
provided, however
, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section
1003.
Money for Securities Payments to be Held in Trust.
If the Company shall
at any time act as its own Paying Agent with respect to any series of Securities, it 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 or 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 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 the principal and any premium
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or
interest, 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 (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.
Subject to applicable
unclaimed property or “escheat laws,” any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed
for two years after such principal and any 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.
Section
1004.
Statement by Officers as to Default.
The Company 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 is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge. The Company shall deliver to the Trustee, as soon as reasonably practicable and in any event
within 20 days after the Company becomes aware of the occurrence of any 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.
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 its existence,
rights (charter and statutory) and franchises;
provided, however
, that the Company shall not be required to preserve any
such right or franchise if the Board of Directors 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 ability of the Company
to make payments hereunder.
Section
1006.
Waiver of Certain Covenants.
Except as otherwise specified
as contemplated by
Section 301
for Securities of such series and as contemplated by
Section 508
, the
Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or
condition set forth in this Indenture for the benefit of the Holders of such series if before the time for such compliance the
Holders of at least 50% 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.
Section
1007.
Additional Amounts.
If the Securities of
a series provide for the payment of additional amounts, the Company will pay to the Holder of any Security of such series additional
amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Securities of
a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which
a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate,
the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities
of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, to protect and to hold them harmless against, any loss, liability, damage or expense reasonably incurred without negligence
or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on
any Officers’ Certificate furnished pursuant to this Section.
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, by delivering an Officers’ Certificate
at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed (unless all of the Securities of a specified tenor are to be redeemed). In the case
of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance
with such restriction or condition.
Section
1103.
Selection 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 not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method in accordance with the Depository’s applicable procedures and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of global securities of such series. If less than all of the Securities
of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and 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.
Section
1104.
Notice of Redemption.
Notice of redemption
shall be given in the manner provided in
Section 106
to the Holders of Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date, except that notices of redemption may be sent more than 60 days prior to a
redemption date if the notice is issued in connection with the defeasance or satisfaction and discharge of this Indenture.
All notices of redemption
shall identify the Securities and state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) if
less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed
and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date (unless the Company defaults in the timely deposit of the Redemption
Price),
(5) the
place or places where such Securities are to be surrendered for payment of the Redemption Price,
(6) that
the redemption is for a sinking fund, if such is the case; and
(7) applicable
CUSIP number, ISIN or “Common Code” number, if any, and that no representation is made by the Trustee as to the correctness
or accuracy of the CUSIP number, ISIN or “Common Code” number, if any, listed in such notice or printed on the Securities.
A notice of redemption
published as contemplated by
Section 106
need not identify particular registered Securities to be redeemed.
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.
In case of any redemption
at the election of the Company, the Company will, at least 10 days (unless a shorter notice will be satisfactory to the Trustee)
prior to the notice date, notify the Trustee of such Redemption Date.
Section
1105.
Deposit of Redemption Price.
Prior to 11:00 a.m. Eastern
time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003
) 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
interests on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their
terms and the provisions of
Section 307
.
If any 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, 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.
Section
1108.
Purchase of Securities.
Unless otherwise specified
as contemplated by
Section 301
, the Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition shall not operate as or be deemed for any purpose
to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company may
be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied.
Section
309
shall apply to all Securities so delivered.
Article
Twelve
SINKING FUNDS
Section
1201.
Applicability of Article.
The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as
contemplated by
Section 301
for such Securities.
The minimum amount of
any sinking fund payment provided for by the terms of any Securities is herein referred to as a “
mandatory sinking
fund payment
”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein
referred to as an “
optional sinking fund payment
”. If provided for by the terms of any Securities, the
cash amount of any sinking fund payment may be subject to reduction as provided in
Section 1202
. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
Section
1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver
Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of
a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such Securities;
provided that
the Securities
to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section
1203.
Redemption of Securities for Sinking Fund.
Not less than 45 days
prior (unless a shorter period shall be satisfactory to the Trustee) 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
1202
and will also deliver to the Trustee any Securities to be so delivered. The Trustee shall select any Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103
and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104
. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections
1106
and
1107.
Article
Thirteen
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section
1301.
Company’s Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at its
option, at any time elect to have either
Section 1302
or
Section 1303
applied to the Outstanding Securities
of any series upon compliance with the conditions set forth below in this
Article Thirteen
.
Section
1302.
Legal Defeasance and Discharge.
Upon the Company’s
exercise of the option provided in
Section 1301
applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of any series on the date the conditions set forth below
are satisfied (hereinafter, “
legal defeasance
”). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the Securities
of such series are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders
of the Securities of such series to receive, solely from the trust fund described in
Section 1304
and as more fully
set forth in such Section, payments in respect of the principal of and any premium and interest on the Securities of such series
when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 304, 305,
306, 1002
and
1003
, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations related thereto and (D) this
Article Thirteen
. Subject to compliance with this
Article
Thirteen
, the Company may exercise its option under this
Section 1302
notwithstanding the prior exercise
of its option under
Section 1303
.
Section
1303.
Covenant Defeasance.
Upon the Company’s
exercise of the option provided in
Section 1301
applicable to this Section, (i) the Company shall be released from
its obligations with respect to the Securities of such series under
Section 801, Section 1006
and
Section 1007,
and any covenants provided pursuant to
Section 301
for the benefit of the Holders of such Securities (to the extent
so provided pursuant to
Section 301
) and (ii) the occurrence of an event specified in
Sections 501(3)
or
(4)
shall not be deemed to be an Event of Default on and after the date the conditions set forth below are satisfied
(hereinafter, “
covenant defeasance
”). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section
or clause whether directly or indirectly by reason of any reference elsewhere herein to any such Section or clause or by reason
of any reference in any such Section or clause to any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section
1304.
Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be
the conditions to application of either
Section 1302
or
Section 1303
to the then Outstanding Securities
of any series:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of
Section 609
who shall agree to comply with the provisions of this
Article Thirteen
applicable to
it) as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm expressed in
a written certification thereof delivered to the Trustee, (if such firms at such time customarily deliver such certifications,
and, if not, such certification may be from the principal financial officer of the Company), to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and each installment
of interest on the Securities on the Stated Maturity of such principal or installment of interest in accordance with the terms
of this Indenture and of the Securities of such series. For this purpose, “
Government Obligations
” means,
with respect to any series of Securities, securities that are (x) direct obligations of the government that issued the currency
in which such series is denominated (or, if such series is denominated in euro, the direct obligations of any government that is
a member of the European Monetary Union) for the payment of which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally
guaranteed as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the
option of the issuer thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation where the relevant government is the United States of America
or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the
holder of such depositary receipt,
provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect
of such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such
depository receipt.
(2) In
the event of an election to have
Section 1302
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 (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
(3) In
the event of an election to have
Section 1303
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 the Outstanding Securities
of such series 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 had not occurred.
(4) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, together stating that all
conditions precedent provided for relating to either the legal defeasance under
Section 1302
or the covenant defeasance
under
Section 1303
(as the case may be) have been complied with.
(5) Such
legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act, or such trust shall be qualified under such act or exempt from regulation thereunder.
(6) At
the time of such deposit, (A) no default in the payment of any principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect to any Senior Debt 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 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 or; in the case of either
clause (A), (B) or (C)
above, each such default or event of default shall have
been cured or waived or shall have ceased to exist.
Section
1305.
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions
of the last paragraph of
Section 1003
, all money and Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee (solely for purposes of this Section and
Section 1306
, the Trustee
and any such other trustee are referred to collectively, for purposes of this
Section 1305
, as the “
Trustee
”)
pursuant to
Section 1304
in respect of the Securities of such series shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities of such series and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of the Securities
of such series, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by law.
The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited
pursuant to
Section 1304
or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the Outstanding Securities.
Anything in this
Article
Thirteen
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in
Section 1304
which, in the opinion of a nationally
recognized firm of independent public accountants (or a nationally recognized investment banking firm or the principal financial
officer of the Company, as appropriate) expressed in a written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Section
1306.
Reinstatement.
If the Trustee or the
Paying Agent is unable to apply any money in accordance with
Section 1302
or
1303
by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then
the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though
no deposit had occurred pursuant to this
Article Thirteen
until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with
Section 1302
or
1303
;
provided, however
, that if
the Company makes any payment of principal of (and premium, if any) or interest on any Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of the Securities of such series to receive such
payment from the money held by the Trustee or the Paying Agent.
Section
1307.
Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions
of the last paragraph of
Section 1003
, all money and Government Obligations (or other property as may be provided
pursuant to
Section 301
) (including the proceeds thereof) deposited with the Trustee pursuant to
Section 1304
in respect of any Securities of any series 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 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, premium, if any, and interest, if any, but such money need not be segregated from other funds except as
provided herein and except to the extent required by law.
Article
Fourteen
SUBORDINATION OF SECURITIES
Section
1401.
Securities Subordinate to Senior Debt.
The Company covenants
and agrees, and each Holder of Securities of any series by the Holder’s 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 Thirteen
and except as may otherwise be specified as contemplated by
Section 301
and
set forth in the Securities of a series, the indebtedness represented by the Securities of such series and the payment of the principal
of and any premium and interest on each and all of the Securities of such series are hereby expressly made subordinate and junior
in right of payment to the prior payment in full of all amounts then due and payable in respect of all Senior Debt of the Company,
to the extent and in the manner herein set forth (unless a different manner is set forth for the Securities of such series as contemplated
by
Section 301
). No provision of this Article shall prevent the occurrence of any default or Event of Default hereunder.
Senior Debt shall not
be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding.
Section
1402.
Payment Over of Proceeds Upon Dissolution, Etc.
In the event of:
(i) any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating
to the Company or its property,
(ii) any
proceeding for the liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, or bankruptcy
proceedings,
(iii) any
assignment by the Company for the benefit of its creditors, or
(iv) any
other marshalling of the assets of the Company,
all Senior Debt shall first be paid in
full before any payment or distribution, whether in cash, securities or other property, shall be made by the Company on account
of the Securities of any series. Any payment or distribution, whether in cash, securities or other property (other than securities
of the Company or any other corporation provided for by a plan or reorganization or a readjustment, the payment of which is subordinate,
at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities
of any series, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or
deliverable in respect to the Securities of any series shall be paid or delivered directly to the holders of Senior Debt in accordance
with the priorities then existing among such holders until all Senior Debt shall have been paid in full. No present or future holder
of any Senior Debt shall be prejudiced in the right to enforce subordination of the indebtedness constituting the Securities of
any series by any act of failure to act on the part of the Company.
Section
1403.
Default on Senior Debt.
If the Company defaults
in the payment of any principal of (or premium, if any) or interest on any Senior Debt when it becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or otherwise, then, unless and until such default is cured or waived
or ceases to exist, the Company shall make no direct or indirect payment (in cash, property, securities, by set-off or otherwise,
but excluding payments in Junior Securities) in respect of the principal of or interest on the Securities of any series or in respect
of any redemption, retirement, purchase or other requisition of any Securities of any series.
Section
1404.
Acceleration of Securities.
In the event of the acceleration
of the maturity of the Securities of any series, the holders of all senior debt securities of the Company outstanding at the time
of such acceleration, subject to any security interest, shall first be entitled to receive payment in full of all amounts due on
such senior debt securities before the holders of the Securities of such series shall be entitled to receive any payment of principal
(and premium, if any) or interest on the Securities of such series, other than payments in Junior Securities.
Section
1405.
Payments to be held in Trust.
If any payment or distribution
under the Securities of any series is knowingly received by the Trustee in contravention of any of the terms of this Indenture
and before all the Senior Debt has been paid in full (other than payments in Junior Securities to the extent permitted elsewhere
in this Indenture), such payment or distribution or security will be received in trust for the benefit of, and paid over or delivered
and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all such Senior
Debt in full.
Section
1406.
Subrogation to Rights of Holders of Senior Debt.
Upon the payment in full
of all Senior Debt, the rights of the holders of Securities of any series shall be subrogated to all the rights of any holders
of Senior Debt to receive any further payments or distributions applicable to the Senior Debt until the Securities of such series
shall have been paid in full, and such payments or distributions received by the Holders of Securities of such series by reason
of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior
Debt, shall, as between the Company and its creditors other than the holders of Senior Debt, on the one hand, and the Holders of
Securities of any series, on the other, be deemed to be a payment by the Company on account of Senior Debt, and not on account
of the Securities of such series.
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 of Securities of any series
on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this article or elsewhere in the Indenture
or in the Securities of such series is intended to or shall
(a) impair,
as among the Company, its creditors other than holders of Senior Debt and the Holders of Securities of such series, 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, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of Securities of such
series the principal of (and premium, if any) and interest on, the Securities of such series 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 Securities of such series and creditors of the Company, as the case may
be, other than the holders of Senior Debt; or
(c) prevent
the Trustee or the Holder of any Securities of such series 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 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 Securities
of any series by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s 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 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 may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities of any series, without incurring responsibility to the Holders of
the Securities of such series and without impairing or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of Securities of such series to the holders of Senior Debt, do any one or more of the following:
(a) change
the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement
in any manner Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding;
(b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt;
(c) release
any Person liable in any manner for the collection of Senior Debt; and
(d) exercise
or refrain from exercising any rights against the Company and any other Person.
Section
1410.
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 of any series pursuant to the provisions of this Article. Notwithstanding the provisions of
this Article or any other provision of the 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 any Securities of any series pursuant to the
provisions of this Article, unless and until the Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee 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 two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest
on any Securities of any series), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two Business Days prior to such date.
Subject to the provisions
of
Section 603(1)
, 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 (or a trustee therefor) to establish that such notice has been given by a holder of Senior
Debt (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 to participate in any payment of 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
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 the Company referred to in this Article, the Trustee, subject to the provisions of
Section 603
, and
the Holders of Securities of any series shall be entitled to conclusively rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or 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 of such series, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the Company, as the case may be, 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.
With respect to the holders
of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically
set forth in this Article, and no implied covenants or obligations with respect to the holders of such Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
with respect to its obligations and duties created hereunder and shall not be liable to any such holders or creditors if it shall
in good faith pay over or distribute to Holders of Securities of any series or to the Company or to any other Person cash, property
or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section
1413.
Rights of Trustee As Holder of Senior Debt; 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 which may at any time be
held by it, to the same extent as any other holder of Senior Debt, and nothing in the 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 this Section shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
Section
1415.
Certain Conversions or Exchanges Deemed Payment.
For the purposes of this
Article only, (a) the issuance and delivery of securities which are subordinate in right of payment to all then outstanding Senior
Debt to substantially the same extent as the Securities are so subordinate (“
Junior Securities
”) (or
cash paid in lieu of fractional shares) upon conversion or exchange of Securities of any series as contemplated by
Section
301
, shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest
on Securities of such series or on account of the purchase or other acquisition of Securities of such series and (b) the payment,
issuance or delivery of cash, property or securities (other than Junior Securities and cash paid in lieu of fractional shares)
upon conversion or exchange of Securities of any series shall be deemed to constitute payment on account of the principal of such
Securities of such series. Nothing contained in this Article or elsewhere in the Indenture or in the Securities of any series is
intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of Securities
of such series the right, which is absolute and unconditional, of the Holder of any Securities of such series to convert or exchange
such Securities of such series in accordance with the terms specified as contemplated by
Section 301
.
Section
1416.
Defeasance of This Article Fourteen.
The subordination of
the Securities provided by this
Article Fourteen
is expressly made subject to the provisions for legal defeasance
or covenant defeasance in
Article Thirteen
hereof and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such legal defeasance or covenant defeasance, the Securities than outstanding shall thereupon cease to be
subordinated pursuant to this
Article Fourteen
.
Article
Fifteen
MEETING OF HOLDERS OF SECURITIES
Section
1501.
Purposes for which Meetings may be Called.
A meeting of Holders
of Securities of any or all series of Securities may be called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture
to be made, given or taken by Holders of Securities of such series.
Section
1502.
Call, Notice and Place of Meetings.
(a) The
Trustee may at any time call a physical or telephonic meeting of Holders of Securities of any series for any purposes specified
in
Section 1501
, to be held at any such time and at such place as the Trustee shall determine. Notice of every meeting
of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in
Section 106
, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a physical or telephonic meeting of the Holders of Securities
of such series for any purpose specified in
Section 1501
and have provided sufficient funds to cover the costs for
the delivery of notice of such meeting, by written request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting
and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section
1503.
Persons Entitled to Vote at Meetings.
Upon the calling of a
meeting of Holders with respect to the Securities of a series all or part of which are represented by a Security, a record date
shall be established for determining Holders of Outstanding Securities of such series entitled to vote at such meeting, which record
date shall be the close of business on the day the notice of the meeting of Holders is given in accordance with
Section 1502
.
The Holders on such record date, and their designated proxies, and only such Persons, shall be entitled to vote at such meeting
of Holders. To be entitled to vote at any meeting of Holders, a Person shall (a) be a Holder of one or more Securities or (b) be
a Person appointed by an instrument in writing as proxy by a Holder of one or more Securities;
provided, however
, that in
the case of any meeting of Holders with respect to the Securities of a series all or part of which are represented by a Security,
only Holders, or their designated proxies, of record on the record date established pursuant to
Section 1503
hereof
shall be entitled to vote at such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section
1504.
Quorum; Action.
The Persons entitled
to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders
of Securities of such series;
provided, however
, that if any action is to be taken at such meeting with respect to a consent
or waiver which this Indenture expressly provides may be given by the Holders of not less than 50% in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote 50% in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in
Section 1502(a)
, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities
of such series which shall constitute a quorum.
Except as limited by
the proviso to the first paragraph of
Section 902
, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series;
provided, however
, that, except as limited by the proviso to the first
paragraph of
Section 902
, any resolution with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than 50% in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative vote of the
Holders of 50% in principal amount of the Outstanding Securities of that series; and
provided, further
, that, except as
limited by the proviso to the first paragraph of
Section 902
, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or any adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding
on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section
1505.
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as is shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified
in
Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104
or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized
by
Section 104
. Such regulations may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 104
or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in
Section 1502(b)
, in which case the Company or the Holders
of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him;
provided, however
, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any
meeting of Holders of Securities of any series duly called pursuant to
Section 1502
at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section
1506.
Counting Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in
Section 1502
and, if applicable,
Section 1504
. Each
copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
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.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
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By:
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Camber Energy, Inc. - S-3
Exhibit 5.1
WOODBURN
AND WEDGE
Attorneys
and Counselors At Law
Sierra
Plaza
6100
Neil Road, Suite 500
Reno,
Nevada 89511-1149
Telephone
(775) 688-3000
Facsimile
(775) 688-3088
Shawn
G. Pearson
E-MAIL:
spearson@woodburnandwedge.com
February
24, 2017
Camber
Energy, Inc.
450
Gears Road, Suite 860
Houston,
Texas 77067
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Re:
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Registration
Statement on Form S-3 of Camber Energy, Inc.
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Ladies
and Gentlemen:
We
have acted as special Nevada counsel to Camber Energy, Inc., a Nevada corporation (“the “
Company
”), in
connection with a Registration Statement on Form S-3 (the “
Registration Statement
”) which is being filed with
the Securities and Exchange Commission (the “
Commission
”), by the Company. Pursuant to the Registration Statement,
the Company intends to register under the Securities Act of 1933, as amended (the “
Securities Act
”) the following
securities in an aggregate offering price not to exceed $150,000,000.00: (1) debt securities of the Company, in one or more
series, consisting of notes, debentures or other evidences of indebtedness (the “
Debt Securities
”), (2) shares
of Common Stock $0.001 par value per share of the Company (the “
Common Stock
”), (3) shares of Preferred
Stock $0.001 par value per share of the Company (the “
Preferred Stock
”), (4) depositary shares (the “
Depositary
Shares
”), (5) Warrants, which may be issued by the Company (the “
Warrants
”), (6) Subscription
Rights to purchase Common Stock, Preferred Stock, Depositary Shares, Warrants or other securities described in the Registration
Statement (the “
Subscription Rights
”), (7) Purchase Contracts (the “
Purchase Contracts
”),
and (8) Units, which may be issued by the Company (the “
Units
”). The Debt Securities, Common Stock, Preferred
Stock, Depositary Shares, Warrants, Subscription Rights, Purchase Contracts, and Units which may be issued by the Company are
hereinafter referred to as the “Camber Securities.”
Our
Opinion (as defined below) is furnished solely with regard to the Registration Statement pursuant to Item 16 of Form S-3
and Item 601(b)(5) of Regulation S-K.
The
only opinions rendered consist of the matters set forth in the opinion paragraph below (our “
Opinion
”), and
no opinion is implied or to be inferred beyond such matters. Additionally, our Opinion is based on and subject to the qualifications,
limitations and exceptions set forth in this letter.
Camber
Energy, Inc.
February
24, 2017
Page
2
In
rendering our Opinion, we have examined copies of only the following documents:
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i.
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the
Registration Statement;
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ii.
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The Articles of Incorporation of the Company as filed
with the Nevada Secretary of State’s Office on December 16, 2003, as amended;
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iii.
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The Amended and Restated Bylaws of the Company in effect
as of March 29, 2016;
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iv.
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Unanimous Written Consent of the Board of Directors of
the Company dated as of February 20, 2017, authorizing and approving the Registration Statement, the registration of the Camber
Securities for issuance and sale by the Company, and matters related thereto;
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v.
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An Officer’s Certificate of Paul Pinkston, Secretary,
Treasurer, and Chief Accounting Officer of the Company, dated February 22, 2017; and
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vi.
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A Certificate of Corporate Existence with respect to the
Company issued on February 22, 2017 by the Nevada Secretary of State.
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In
making all of our examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures,
the authenticity and completeness of all documents submitted to us as originals, the conformity to the original documents of all
documents submitted to us as copies, and the authenticity of the original of such documents. We also have assumed the due execution
and delivery of all documents by any persons or entities where due execution and delivery by such persons or entities is a prerequisite
to the effectiveness of such documents.
As
to all questions of fact that are material to our Opinion, we have assumed the factual accuracy of and relied upon the factual
statements set forth in the Registration Statement, in the Certificate of an Officer of the Company, item (v) above, and the Certificate
of the Nevada Secretary of State, item (vi) above. We have not independently verified or investigated, nor do we assume any responsibility
for, the factual accuracy or completeness of such factual statements.
The
members of this firm are admitted to the bar of the State of Nevada and are duly qualified to practice law in that state. Our
Opinion is limited to the laws of the State of Nevada that are in effect on the date of this letter. We express no opinion with
regard to any matter which may be governed by the laws of any other jurisdiction. The Opinion hereinafter set forth is based upon
pertinent laws and facts in existence as of the date hereof and we expressly disclaim any obligation to advise you of any changes
to such pertinent laws or facts that may hereafter come to our attention.
Camber
Energy, Inc.
February
24, 2017
Page
3
We
assume: (a) that the Board of Directors of the Company duly authorizes by proper corporate action the terms and issuance
of the Camber Securities, (b) the qualification of the an indenture or indentures (each an “
Indenture
”)
proposed to be entered into between the Company and one or more trustees chosen by the Company and qualified to act as such under
the Trust Indenture Act of 1939, as amended (the “
TIA
”) (any such trustee, the “
Indenture Trustee
”),
with respect to the Debt Securities (c) the Registration Statement will be declared effective under the Securities Act and there
are no stop orders (d) the due execution, authentication, issuance and delivery of the Camber Securities by the Company upon
payment of the consideration therefor as provided in the applicable purchase, underwriting or similar agreements duly approved
by the requisite corporate action by the Company and otherwise, if applicable, in accordance with the provisions of the Indenture
governing the Debt Securities, and (e) the due execution, authentication, issuance and delivery of the Depositary Shares,
Warrants, Purchase Contracts, Subscription Rights and Units.
We
further assume that at the time of issuance of any shares of Common Stock or Preferred Stock (including any such shares issuable
upon the conversion of another Security), the Company has sufficient authorized, unissued and unreserved shares of Common Stock
and Preferred Stock available for issuance as provided in the Registration Statement and any related amendment thereto or prospectus
supplement.
Based
on and subject to the foregoing and in reliance thereon, and having regard to legal considerations and other information that
we deem relevant, we are of the opinion that:
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1.
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The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada.
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2.
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The
Debt Securities will be validly issued and constitute the legal, valid and binding obligations of the Company, to the extent that
Nevada law governs such issues, when:
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a. the Debt Securities are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board of Directors
and, to the extent required, the stockholders of the Company (“
Debt Authorizing Resolutions
”) approving the
pricing, terms and conditions of the issuance and sale of the Debt Securities;
b. the Debt Securities are issued and delivered in accordance with (i) the provisions of an Indenture, including delivery of an officer’s
certificate or supplemental indenture, the due authentication of the Debt Securities by the Trustee and the execution and delivery
by the Company and the Trustee of all requisite documentation pursuant to the Indenture, (ii) the Company’s Articles of
Incorporation and Bylaws, (iii) the Debt Authorizing Resolutions and (iv) the Registration Statement;
Camber
Energy, Inc.
February
24, 2017
Page
4
c. compliance with the Securities Act and the TIA and action of the Commission permitting the Registration Statement to become effective;
and
d. the Company has received the consideration provided for in the applicable Debt Authorizing Resolutions.
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3.
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The
Common Stock and the Preferred Stock, as the case may be, will be validly issued, fully paid and nonassessable, when:
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a. such Common Stock or Preferred Stock is specifically authorized for issuance and sale by action, resolutions or consent duly adopted
by the Board of Directors and, to the extent required, the stockholders of the Company (“
Equity Authorizing Resolutions
”)
approving the pricing, adequacy of consideration and the rights, preferences, privileges, restrictions, terms and conditions thereof;
b. in the case of Preferred Stock, the authorized class or series, number of shares, voting power, designations, preferences, limitations,
restrictions, relative rights and terms and conditions of the Preferred Stock are set forth in a certificate of designation to
be approved by the Company’s Board of Directors, or in an amendment to the Company’s Articles of Incorporation approved
by the Company’s Board of Directors and stockholders, which, in each case, is appropriately filed in the office of the Nevada
Secretary of State and has become effective prior to the issuance of any shares of such Preferred Stock;
c. the terms of the offer, issuance and sale of shares of Common Stock or Preferred Stock have been duly established in conformity
with the Company’s Articles of Incorporation, Bylaws, the Equity Authorizing Resolutions, and as authorized by the approval
of the stockholders of the Company, if such approval is so required;
d. compliance with the Securities Act and action of the Commission permitting the Registration Statement to become effective; and
e. the Company has received the consideration provided for in the applicable Equity Authorizing Resolutions.
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4.
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The
Depositary Shares will constitute valid and legally binding obligations of the Company, to the extent that Nevada law governs
such issues, when:
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a. such Depositary Shares are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board of
Directors and, to the extent required, the stockholders of the Company (“
Depositary Shares Authorizing Resolutions
”)
which include the pricing and terms upon which the Depositary Shares are to be issued, their form and content and the consideration
for which shares or other securities are to be issued in connection therewith;
Camber
Energy, Inc.
February
24, 2017
Page
5
b. the respective documents and agreements relating to the creation, offering, issuance and sale of the Depositary Shares (the “
Depositary
Shares Documents
”) have been duly authorized, executed and delivered and are enforceable in accordance with their terms;
c. the terms of the offer, issuance and sale of such Depositary Shares have been duly established in conformity with the applicable
Depositary Shares Documents and Depositary Shares Authorizing Resolutions;
d. the applicable Depositary Shares have been duly executed and countersigned in accordance with the applicable Depositary Shares
Documents and created, offered, issued and sold as contemplated in the Registration Statement (and any amendment thereto, including
any prospectus supplement), the applicable Depositary Shares Authorizing Resolutions and the applicable Depositary Shares Documents;
and
e. the
Company has received the consideration for the Depositary Shares provided for in the applicable Depositary Shares Authorizing
Resolutions.
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5.
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The
Warrants will constitute valid and legally binding obligations of the Company, to the extent that Nevada law governs such issues,
when:
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a. such Warrants are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board of Directors
and, to the extent required, the stockholders of the Company (“
Warrant Authorizing Resolutions
”) which include
the pricing and terms upon which the Warrants are to be issued, their form and content and the consideration for which shares
or other securities are to be issued in connection therewith;
b. the respective documents and agreements relating to the creation, offering, issuance and sale of the Warrants (the “
Warrant
Documents
”) have been duly authorized, executed and delivered and are enforceable in accordance with their terms;
c. the terms of the offer, issuance and sale of such Warrants have been duly established in conformity with the applicable Warrant
Documents and Warrant Authorizing Resolutions;
Camber
Energy, Inc.
February
24, 2017
Page
6
d. the applicable Warrants have been duly executed and countersigned in accordance with the applicable Warrant Documents and created,
offered, issued and sold as contemplated in the Registration Statement (and any amendment thereto, including any prospectus supplement),
the applicable Warrant Authorizing Resolutions and the applicable Warrant Documents; and
e. the Company has received the consideration for the Warrants provided for in the applicable Warrant Authorizing Resolutions.
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6.
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The
Purchase Contracts will constitute valid and legally binding obligations of the Company, to the extent that Nevada law governs
such issues, when:
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a. such Purchase Contracts are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board of
Directors and, to the extent required, the stockholders of the Company (“
Purchase Contracts Authorizing Resolutions
”)
which include the pricing and terms upon which the Purchase Contracts are to be issued, their form and content and the consideration
for which shares or other securities are to be issued in connection therewith;
b. the respective documents and agreements relating to the creation, offering, issuance and sale of the Purchase Contracts (the “
Purchase
Contracts Documents
”) have been duly authorized, executed and delivered and are enforceable in accordance with their
terms;
c. the terms of the offer, issuance and sale of such Purchase Contracts have been duly established in conformity with the applicable
Purchase Contracts Documents and Purchase Contracts Authorizing Resolutions;
d. the applicable Purchase Contracts have been duly executed and countersigned in accordance with the applicable Purchase Contracts
Documents and created, offered, issued and sold as contemplated in the Registration Statement (and any amendment thereto, including
any prospectus supplement), the applicable Purchase Contracts Authorizing Resolutions and the applicable Purchase Contracts Documents;
and
e. the Company has received the consideration for the Purchase Contracts provided for in the applicable Purchase Contracts Authorizing
Resolutions.
Camber
Energy, Inc.
February
24, 2017
Page
7
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7.
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The
Units will constitute valid and legally binding obligations of the Company, to the extent that Nevada law governs such issues,
when:
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a. such Units are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board of Directors and,
to the extent required, the stockholders of the Company (“
Units Authorizing Resolutions
”) which include the
pricing and terms upon which the Units are to be issued, their form and content and the consideration for which shares or other
securities are to be issued in connection therewith;
b. the respective documents and agreements relating to the creation, offering, issuance and sale of the Units (the “
Units
Documents
”) have been duly authorized, executed and delivered and are enforceable in accordance with their terms;
c. the terms of the offer, issuance and sale of such Units have been duly established in conformity with the applicable Units Documents
and Units Authorizing Resolutions;
d. the applicable Units have been duly executed and countersigned in accordance with the applicable Units Documents and created,
offered, issued and sold as contemplated in the Registration Statement (and any amendment thereto, including any prospectus supplement),
the applicable Units Authorizing Resolutions and the applicable Units Documents; and
e. the Company has received the consideration for the Units provided for in the applicable Units Authorizing Resolutions.
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8.
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The
Subscription Rights will constitute valid and legally binding obligations of the Company, to the extent that Nevada law governs
such issues, when:
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a. such Subscription Rights are specifically authorized for issuance by action, resolutions or consent duly adopted by the Board
of Directors and, to the extent required, the stockholders of the Company (“
Subscription Rights Authorizing Resolutions
”)
which include the pricing and terms upon which the Subscription Rights are to be issued, their form and content and the consideration
for which shares or other securities are to be issued in connection therewith;
b. the respective documents and agreements relating to the creation, offering, issuance and sale of the Subscription Rights (the
“
Subscription Rights Documents
”) have been duly authorized, executed and delivered and are enforceable in accordance
with their terms;
Camber
Energy, Inc.
February
24, 2017
Page
8
c. the terms of the offer, issuance and sale of such Subscription Rights have been duly established in conformity with the applicable
Subscription Rights Documents and Subscription Rights Authorizing Resolutions;
d. the applicable Subscription Rights have been duly executed and countersigned in accordance with the applicable Subscription Rights
Documents and created, offered, issued and sold as contemplated in the Registration Statement (and any amendment thereto, including
any prospectus supplement), the applicable Subscription Rights Authorizing Resolutions and the applicable Subscription Rights
Documents; and
e.
the Company has received the consideration for the Subscription Rights provided for in the applicable Subscription Rights Authorizing
Resolutions.
We
offer no advice and express no opinion as to any provision contained in or otherwise made a part of the Company Securities (i) providing
for rights of indemnity or contribution, (ii) purporting to waive (or having the effect of waiving) any rights under the
Constitution or laws of the United States of America or any state, (iii) providing for, or having the effect of, releasing
any person prospectively from liability for its own wrongful or negligent acts, or breach of such documents and instruments, (iv)
any provision 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, (v) any provision requiring the payment of attorneys’
fees, where such payment is contrary to law or public policy, (vi) any provision permitting, upon acceleration of any Debt Security,
collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon,
(vii) the creation, validity, attachment, perfection, or priority of any lien or security interest, (viii) provisions for exclusivity,
election or cumulation of rights or remedies, (ix) grants of setoff rights, (x) provisions prohibiting, restricting, or requiring
consent to assignment or transfer of any right or property, (xi) provisions purporting to make a guarantor primarily liable rather
than as a surety, (xii) provisions purporting to waive modifications of any guaranteed obligation to the extent such modification
constitutes a novation, (xiii) any provision to the extent it requires that a claim with respect to a security denominated in
other than U.S. dollars (or judgment in respect of such a claim) be converted to U.S. dollars at a rate of exchange at a particular
date, to the extent applicable law otherwise provides, (xiv) specifying the jurisdiction the laws of which shall be applicable
thereto or specifying or limiting the jurisdictions before the courts of which cases relating to the securities may be brought,
(xv) providing that the failure to exercise any right, remedy or option shall not operate as a waiver thereof, (xvi) to
the effect that amendments, waivers and modifications may only be made in writing, (xvii) purporting to establish any evidentiary
standard, (xviii) granting any power of attorney or proxies, (xix) purporting to waive or otherwise affect any right
to receive notice, (xx) purporting to restrict competition, and (xxi) the severability, if invalid, of provisions to the foregoing
effect. We offer no opinion as to any security into which any Debt Securities, Preferred Stock, Depositary Shares, Warrants, Purchase
Contracts, Units or Subscription Rights may be convertible.
Camber
Energy, Inc.
February
24, 2017
Page
9
With
your consent, we have assumed that each of the Debt Securities and the supplemental indentures and officers’ certificates
pursuant to the Indenture governing such Debt Securities, each Warrant and Warrant Document, each Depositary Share and Depositary
Share Document, each Purchase Contract and Purchase Contract Document, each Unit and Unit Document and each Subscription Right
and Subscription Right Document (collectively, the “
Documents
”) (i) will be duly authorized, executed and delivered
by the parties thereto, (ii) that each of the Documents will constitute legally valid and binding obligations of the parties thereto,
other than the Company, enforceable against each of them in accordance with their respective terms, and (iii) that the status
of each of the Documents as legally valid and binding obligations of the parties will not be affected by any (a) breaches of,
or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders,
or (c) failures to obtain required consents, approvals or authorizations from or to make required registrations, declarations
or filings with, governmental authorities.
We
hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the reference to our firm under
the heading “Legal Matters” set forth in the Prospectus forming a part of the Registration Statement.
In
giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section
7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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Very truly yours,
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Woodburn
and Wedge
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By:
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/s/
Shawn G. Pearson
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Shawn G. Pearson
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Camber Energy, Inc. - S-3
Exhibit 5.2
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1000
Main Street, 36th Floor
Houston,
Texas 77002
(713)
226-6000 TEL
(713)
228-1331 FAX
porterhedges.com
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February
24, 2017
Camber
Energy, Inc.
450
Gears Road, Suite 860
Houston,
Texas 77067
|
Ladies
and Gentlemen:
We
have acted as counsel for Camber Permian LLC, a Texas limited liability company (“
Camber Permian
”),
and CEI Operating LLC, a Texas limited liability company (“
CEI Operating
,” and together with Camber
Permian, the “
Companies
”), in connection with the registration under the Securities Act of 1933, as
amended (the “
Securities Act
”), on a registration statement on Form S-3 (the “
Registration
Statement
”) filed by Camber Energy, Inc., a Nevada corporation (the “
Parent
”), for the
offer and sale from time to time pursuant to Rule 415 under the Securities Act of up to $150,000,000 of (i) debt securities, in
one or more series, consisting of notes, debentures or other evidences of indebtedness (the “
Debt Securities
”),
(ii) shares of common stock, par value $0.001 per share (the “
Common Stock
”), (iii) shares of preferred
stock, par value $0.001 per share (the “
Preferred Stock
”), (iv) depositary shares (the “
Depositary
Shares
”), (v) warrants to purchase Debt Securities, Common Stock, Preferred Stock, Depositary Shares, purchase
contracts (the “
Purchase Contracts
”) and units (the “
Units
”), (vi) subscription
rights to purchase Common Stock, Preferred Stock, Depositary Shares and other securities, (vi) Purchase Contracts, (vii) Units,
and (viii) guarantees of non-convertible Debt Securities (the “
Guarantees
,” and together with the Debt
Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase Contracts, Units and Subscription Rights, each
a “
Security
” and collectively the “
Securities
”), that may be issued from time
to time by the Companies as subsidiary guarantors, all as more fully described in the Registration Statement.
We
have examined those records and documents as we have deemed necessary, including but not limited to originals, photocopies or
conformed copies of: (i) the Registration Statement (including the exhibits thereto); (ii) the Certificate of Formation and LLC
Agreement of each Company, each as amended to date; (iii) the corporate proceedings of each Company; and (iv) all other certificates,
agreements and documents that we have considered relevant and necessary as a basis for the opinions expressed in this letter.
In addition, we have made those other examinations of law and fact as we considered necessary to form a basis for our opinions.
As
to certain questions of fact material to our opinions that we have not independently established, we have relied upon representations
of public officials and upon certificates from officers of each Company.
In
rendering the following opinions, we have assumed: (i) all information contained in all documents reviewed by us is true and correct;
(ii) the genuineness of all signatures on all documents reviewed by us; (iii) the authenticity and completeness of all documents
submitted to us as originals; (iv) the conformity to authentic originals of all documents submitted to us as certified or photostatic
copies; and (v) each natural person signing any document reviewed by us had the legal capacity to do so. We have also assumed
the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to
the effectiveness of such documents.
Camber
Energy, Inc.
February
24, 2017
Page 2
Based
on the foregoing, and subject to the assumptions, exceptions and qualifications stated below, we are of the opinion that with
respect to Guarantees, when (a) the applicable Indenture and any applicable supplemental Indentures have been duly authorized
and validly executed and delivered by the trustee, the Parent and any Company, (b) all necessary limited liability company or
other action by each Company has been taken to authorize the issuance and the specific terms of such Guarantees, the terms of
the offering thereof and related matters and (c) such Guarantees have been duly authorized, executed, authenticated, issued and
delivered in accordance with the applicable Indenture and any applicable supplemental Indenture, such Guarantees will be legally
issued and will constitute valid and binding obligations of the applicable Company, enforceable against such Company in accordance
with their terms.
The
opinions expressed above are subject in all respects to the following assumptions, exceptions and qualifications:
A. We have assumed that: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have
become effective under the Securities Act and will comply with all applicable provisions of the Securities Act and the rules and
regulations thereunder, and such state securities rules, regulations and laws as may be applicable; (ii) the Registration Statement
will remain effective and comply with all applicable provisions of the Securities Act and the rules and regulations thereunder,
and such state securities rules, regulations and laws as may be applicable at the time the Securities are offered or issued as
contemplated by the Registration Statement; (iii) a prospectus supplement will have been prepared and filed with the Securities
and Exchange Commission (the “
Commission
”) describing the Securities offered thereby and will comply
with the Securities Act and the rules and regulations thereunder, and state securities rules, regulations and laws as may be applicable
at the time the Securities are offered or issued as contemplated by the Registration Statement; (iv) all Securities will be issued
and sold in compliance with the Securities Act and the rules and regulations thereunder, the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder and such applicable state securities rules, regulations and laws as may be
applicable at the time the Securities are offered or issued as contemplated by the Registration Statement and in the manner stated
in the Registration Statement and the appropriate prospectus supplement; (v) a definitive purchase, underwriting or similar 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, and the consideration payable for the Securities sold thereunder shall have been paid to the Company
in accordance with such underwriting, purchase or similar agreement; (vi) there shall not have occurred any change in law affecting
the validity or enforceability of any such Security; and (vii) none of the terms of any Security to be established after the date
hereof, nor the issuance and delivery of any such Security nor the compliance by the Company with the terms of such Security will
violate any applicable law or will result in violation of any provision of any instrument or agreement then binding on the Company,
or will violate any restriction imposed by a court or governmental body having jurisdiction over the Company.
Camber
Energy, Inc.
February
24, 2017
Page 3
B. The enforceability of the Securities and provisions thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereinafter in effect relating to or affecting enforcement of creditors rights
generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity
or at law). Such principles of equity include, without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and also the possible unavailability of specific performance or injunctive relief.
C. We express no opinion with respect to: (i) the enforceability of any other agreement or instrument with respect to delay or omission
of enforcement of rights or remedies, or waivers of notices or defenses, or waivers of benefits of or other rights that cannot
be effectively waived under, applicable laws; or (ii) the enforceability of indemnification provisions to the extent they purport
to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities laws or blue
sky laws.
D. The opinions expressed in this letter are limited to the laws of the State of Texas and the federal securities laws of the United
States of America.
We
consent to the use of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to our firm under the caption
“Legal Matters” in the prospectus included as a part of the Registration Statement. In giving this consent, we do
not admit that this firm is in the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission promulgated thereunder.
This
opinion is rendered on the date hereof and we disclaim any duty to advise you regarding any changes in the matters addressed herein.
Very
truly yours,
/s/
Porter Hedges LLP
PORTER
HEDGES LLP
Camber Energy, Inc. - S-3
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Form S-3 Registration Statement of Camber Energy, Inc. of our report dated July 13, 2016, relating to our audit of the consolidated
financial statements of Camber Energy, Inc. (formerly Lucas Energy, Inc.), which appear in the Annual Report on Form 10-K of Camber
Energy, Inc. for the year ended March 31, 2016, and our report dated July 19, 2016, related to our audit of the financial statements
of revenues and direct operating expenses of the oil and gas properties acquired from Segundo Resources, LLC (the seller representative
for various sellers) for the years ended March 31, 2016 and 2015, which appear in the Current Report on Form 8-K/A (Amendment
No. 1) of Camber Energy, Inc. filed with the Securities and Exchange Commission on September 27, 2016.
We also consent to the reference to our firm under the
caption “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ GBH CPAs, PC
GBH CPAs, PC
www.gbhcpas.com
Houston, Texas
February 24, 2017
Camber Energy, Inc. - S-3
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of Camber Energy, Inc., formerly Lucas Energy,
Inc., of our report dated July 14, 2015, relating to the financial statements of Camber Energy, Inc. (which report expresses an
unqualified opinion and includes an explanatory paragraph relating to Camber Energy, Inc.’s ability to continue as a going
concern), appearing in the Annual Report on Form 10-K of Camber Energy, Inc. for the year ended March 31, 2016.
We
also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is a part of this Registration
Statement.
/s/
Hein & Associates LLP
Hein
& Associates LLP
Houston,
Texas
February
24, 2017
Camber Energy, Inc. - S-3
EXHIBIT 23.3
CONSENT OF INDEPENDENT OIL AND GAS
CONSULTANTS
We consent to the
incorporation by reference in this Registration Statement on Form S-3 of Camber Energy, Inc. (formerly Lucas Energy, Inc.) of our
report entitled “Estimated Reserves And Future Net Revenue as Of March 31, 2016 (SEC Case)”, included in or made a
part of the Camber Energy Inc. (formerly Lucas Energy, Inc.) Annual Report on Form 10-K for the year ended March 31, 2016 (including
the notes to the financial statements included therein). We also consent to the reference to us under the heading “Experts”
in the Prospectus, which is part of this Registration Statement.
|
|
Ralph E. Davis Associates, LLC
|
|
|
|
|
|
/s/ L.B. BRANUM, P.E.
|
|
|
|
L.B. Branum, P.E.
|
|
|
Senior Vice President
|
|
|
February 24, 2017
|
711
Louisiana Street, Suite 3100 Houston, Texas 77002
Office:
713.622.8955 Fax: 713.490.0355 www.ralphedavis.com
Worldwide
Energy Consultants Since 1924
Camber Energy, Inc. - S-3
Exhibit 25.1
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT
OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
☐ CHECK IF AN APPLICATION TO
DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
A
National Banking Association
(Jurisdiction
of incorporation or
organization
if not a U.S. national
bank)
|
|
94-1347393
(I.R.S.
Employer
Identification
No.)
|
|
101
North Phillips Avenue
Sioux
Falls, South Dakota
(Address
of principal executive offices)
|
|
57104
(Zip
code)
|
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street
and Marquette Avenue, 17
th
Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
Camber Energy,
Inc.
(Exact name of registrant as specified in its charter)
|
Nevada
|
20-2660243
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
450 Gears Road, Suite 860
Houston, Texas 77067
(713) 528-1881
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Senior Debt Securities
*TABLE OF ADDITIONAL
REGISTRANTS
The following subsidiaries of
Camber Energy, Inc. are co-registrants under this registration statement.
|
Name
|
|
Jurisdiction of
Incorporation or
Organization
|
|
I.R.S. Employer
Identification Number
|
|
CEI Operating LLC
|
|
Texas
|
|
81-4630032
|
|
Camber Permian LLC
|
|
Texas
|
|
81-5377234
|
The address for each of the co-registrants
is c/o Camber Energy, Inc., 450 Gears Road, Suite 860, Houston, Texas 77067, Telephone: (713) 528-1881.
The name and address, including zip
code, of the agent for service for each of the co-registrants is Paul Pinkston, Chief Accounting Officer of Camber Energy, Inc.,
450 Gears Road, Suite 860, Houston, Texas 77067. The telephone number, including area code, of the agent for service for each of
the co-registrants is (713) 528-1881.
|
|
Item 1.
|
General Information.
Furnish the following information as to the trustee:
|
|
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
|
|
(b)
|
Whether it is authorized to exercise corporate trust powers.
|
The trustee is authorized to exercise corporate
trust powers.
|
|
Item 2.
|
Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
|
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor
is not in default as provided under Item 13.
|
Item 15.
Foreign Trustee.
Not applicable.
|
|
|
|
|
Item 16.
List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
|
|
|
|
|
Exhibit 1.
|
A copy of the Articles of Association of the trustee now in effect.*
|
|
Exhibit 2.
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated
January 14, 2015.**
|
|
Exhibit 3.
|
A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated
January 6, 2014.**
|
|
Exhibit 4.
|
Copy of By-laws of the trustee as now in effect.**
|
|
Exhibit 5.
|
Not applicable.
|
|
Exhibit 6.
|
The consent of the trustee required by Section 321(b) of the Act.
|
|
Exhibit
7.
|
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining authority
.
|
|
Exhibit 8.
|
Not applicable.
|
|
Exhibit 9.
|
Not applicable.
|
* Incorporated
by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December
30, 2005 of file number 333-130784.
** Incorporated by reference to the exhibit of the same number to
the trustee’s Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number 333-190926.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United
States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Dallas and State of Texas on the 21
st
of February, 2017.
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
|
Patrick T. Giordano
|
|
|
|
Vice President
|
|
EXHIBIT 6
February 21, 2017
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial,
or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange
Commission upon its request thereof.
|
|
Very truly yours,
|
|
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
Patrick T. Giordano
|
|
|
|
Vice President
|
|
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business December 31, 2016, filed in accordance
with 12 U.S.C. §161 for National Banks.
|
|
|
|
Dollar
Amounts
In
Millions
|
|
ASSETS
|
|
|
|
|
|
Cash and balances due from depository
institutions:
|
|
|
|
|
|
|
Noninterest-bearing balances and
currency and coin
|
|
|
$
|
19,607
|
|
|
Interest-bearing balances
|
|
|
|
200,504
|
|
Securities:
|
|
|
|
|
|
|
Held-to-maturity securities
|
|
|
|
99,478
|
|
|
Available-for-sale securities
|
|
|
|
286,478
|
|
Federal funds sold and securities
purchased under agreements to resell:
|
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
|
77
|
|
|
Securities purchased under agreements
to resell
|
|
|
|
22,705
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
|
19,947
|
|
|
Loans and leases, net of unearned
income
|
924,819
|
|
|
|
|
|
LESS: Allowance for loan and lease
losses
|
10,502
|
|
|
|
|
|
Loans and leases, net of unearned
income and allowance
|
|
|
|
914,317
|
|
Trading Assets
|
|
|
|
36,745
|
|
Premises and fixed assets (including
capitalized leases)
|
|
|
|
7,745
|
|
Other real estate owned
|
|
|
|
915
|
|
Investments in unconsolidated subsidiaries
and associated companies
|
|
|
|
11,334
|
|
Direct and indirect investments
in real estate ventures
|
|
|
|
233
|
|
Intangible assets
|
|
|
|
|
|
|
Goodwill
|
|
|
|
22,695
|
|
|
Other intangible assets
|
|
|
|
17,298
|
|
Other assets
|
|
|
|
67,157
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
$
|
1,727,235
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
|
In domestic offices
|
|
|
|
$1,218,766
|
|
|
|
Noninterest-bearing
|
407,266
|
|
|
|
|
|
|
Interest-bearing
|
811,500
|
|
|
|
|
|
In foreign offices, Edge and Agreement
subsidiaries, and IBFs
|
|
|
|
120,624
|
|
|
|
Noninterest-bearing
|
1,115
|
|
|
|
|
|
|
Interest-bearing
|
119,509
|
|
|
|
|
Federal funds purchased and securities
sold under agreements to repurchase:
|
|
|
|
|
|
|
Federal funds purchased in domestic
offices
|
|
|
|
6,444
|
|
|
Securities sold under agreements
to repurchase
|
|
|
|
9,562
|
|
|
|
Dollar Amounts
In Millions
|
|
|
|
|
|
|
Trading liabilities
|
|
|
13,951
|
|
Other borrowed money
|
|
|
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
159,898
|
|
Subordinated notes and debentures
|
|
|
13,200
|
|
Other liabilities
|
|
|
29,006
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
1,571,451
|
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
0
|
|
Common stock
|
|
|
519
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
106,705
|
|
Retained earnings
|
|
|
49,373
|
|
Accumulated other comprehensive income
|
|
|
(1,220)
|
|
Other equity capital components
|
|
|
0
|
|
|
|
|
|
|
Total bank equity capital
|
|
|
155,377
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
407
|
|
|
|
|
|
|
Total equity capital
|
|
|
155,784
|
|
|
|
|
|
|
Total liabilities, and equity capital
|
|
$
|
1,727,235
|
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare
that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and belief.
John R. Shrewsberry
Sr. EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition
and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with
the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Directors
James Quigley
Enrique Hernandez, Jr
Cynthia Milligan
Camber Energy, Inc. - S-3
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE
ACT OF 1939 OF A
CORPORATION DESIGNATED
TO ACT AS TRUSTEE
☐ CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
A National Banking Association
|
94-1347393
|
|
(Jurisdiction of incorporation or
|
(I.R.S. Employer
|
|
organization if not a U.S. national
|
Identification No.)
|
|
bank)
|
|
|
101 North Phillips Avenue
|
|
|
Sioux Falls, South Dakota
|
57104
|
|
(Address of principal executive offices)
|
(Zip code)
|
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth
Street and Marquette Avenue, 17
th
Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
Camber Energy, Inc.
(Exact name of registrant as specified in its charter)
|
Nevada
|
20-2660243
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
450 Gears Road, Suite 860
Houston, Texas 77067
(713) 528-1881
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Subordinated Debt Securities
*TABLE OF
ADDITIONAL REGISTRANTS
The following subsidiaries
of Camber Energy, Inc. are co-registrants under this registration statement.
|
|
|
|
|
|
|
Name
|
|
Jurisdiction of
Incorporation or
Organization
|
|
I.R.S.
Employer
Identification Number
|
|
CEI Operating LLC
|
|
Texas
|
|
81-4630032
|
|
Camber Permian LLC
|
|
Texas
|
|
81-5377234
|
The address for each of the co-registrants
is c/o Camber Energy, Inc., 450 Gears Road, Suite 860, Houston, Texas 77067, Telephone: (713) 528-1881.
The name and address, including
zip code, of the agent for service for each of the co-registrants is Paul Pinkston, Chief Accounting Officer of Camber Energy,
Inc., 450 Gears Road, Suite 860, Houston, Texas 77067. The telephone number, including area code, of the agent for service for
each of the co-registrants is (713) 528-1881.
Item 1.
General
Information.
Furnish the following information as to the trustee:
|
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
|
|
(b)
|
Whether it is authorized to exercise corporate trust powers.
|
The trustee is authorized to exercise corporate
trust powers.
Item 2.
Affiliations
with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor
is not in default as provided under Item 13.
Item 15.
Foreign
Trustee.
Not applicable.
Item 16.
List
of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
|
|
Exhibit 1.
|
A copy of the Articles of Association of the trustee now in effect.*
|
|
|
|
|
|
|
Exhibit 2.
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.**
|
|
|
|
|
|
|
Exhibit 3.
|
A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.**
|
|
|
|
|
|
|
Exhibit 4.
|
Copy of By-laws of the trustee as now in effect.**
|
|
|
|
|
|
|
Exhibit 5.
|
Not applicable.
|
|
|
|
|
|
|
Exhibit 6.
|
The consent of the trustee required by Section 321(b) of the Act.
|
|
|
|
|
|
|
Exhibit 7.
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
|
|
|
|
|
|
|
Exhibit 8.
|
Not applicable.
|
|
|
|
|
|
|
Exhibit 9.
|
Not applicable.
|
* Incorporated
by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December
30, 2005 of file number 333-130784.
** Incorporated by reference to the exhibit of the same number
to the trustee’s Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number 333-190926.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the
United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Dallas and State of Texas on the 21
st
of February, 2017.
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
Patrick T. Giordano
|
|
|
|
Vice President
|
|
EXHIBIT 6
February 21, 2017
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial,
or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange
Commission upon its request thereof.
|
|
Very truly yours,
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
Patrick T. Giordano
|
|
|
|
Vice President
|
|
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business December 31, 2016, filed in
accordance with 12 U.S.C. §161 for National Banks.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
|
|
|
|
|
|
|
|
In Millions
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin
|
|
|
|
|
$
|
19,607
|
|
|
Interest-bearing balances
|
|
|
|
|
|
200,504
|
|
|
Securities:
|
|
|
|
|
|
|
|
|
Held-to-maturity securities
|
|
|
|
|
|
99,478
|
|
|
Available-for-sale securities
|
|
|
|
|
|
286,478
|
|
|
Federal funds sold and securities purchased under agreements to resell:
|
|
|
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
|
|
|
77
|
|
|
Securities purchased under agreements to resell
|
|
|
|
|
|
22,705
|
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
|
|
|
19,947
|
|
|
Loans and leases, net of unearned income
|
|
|
924,819
|
|
|
|
|
|
LESS: Allowance for loan and lease losses
|
|
|
10,502
|
|
|
|
|
|
Loans and leases, net of unearned income and allowance
|
|
|
|
|
|
914,317
|
|
|
Trading Assets
|
|
|
|
|
|
36,745
|
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
|
|
|
7,745
|
|
|
Other real estate owned
|
|
|
|
|
|
915
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
|
|
|
11,334
|
|
|
Direct and indirect investments in real estate ventures
|
|
|
|
|
|
233
|
|
|
Intangible assets
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
|
|
|
22,695
|
|
|
Other intangible assets
|
|
|
|
|
|
17,298
|
|
|
Other assets
|
|
|
|
|
|
67,157
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
|
$
|
1,727,235
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
|
|
|
In domestic offices
|
|
|
|
|
$
|
1,218,766
|
|
|
Noninterest-bearing
|
|
|
407,266
|
|
|
|
|
|
Interest-bearing
|
|
|
811,500
|
|
|
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
|
|
|
|
|
120,624
|
|
|
Noninterest-bearing
|
|
|
1,115
|
|
|
|
|
|
Interest-bearing
|
|
|
119,509
|
|
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase:
|
|
|
|
|
|
|
|
|
Federal funds purchased in domestic offices
|
|
|
|
|
|
6,444
|
|
|
Securities sold under agreements to repurchase
|
|
|
|
|
|
9,562
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
|
|
|
|
|
|
In Millions
|
|
|
|
|
|
|
|
|
Trading liabilities
|
|
|
13,951
|
|
|
Other borrowed money
|
|
|
|
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
159,898
|
|
|
Subordinated notes and debentures
|
|
|
13,200
|
|
|
Other liabilities
|
|
|
29,006
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
1,571,451
|
|
|
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
0
|
|
|
Common stock
|
|
|
519
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
106,705
|
|
|
Retained earnings
|
|
|
49,373
|
|
|
Accumulated other comprehensive income
|
|
|
(1,220
|
)
|
|
Other equity capital components
|
|
|
0
|
|
|
|
|
|
|
|
|
Total bank equity capital
|
|
|
155,377
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
407
|
|
|
|
|
|
|
|
|
Total equity capital
|
|
|
155,784
|
|
|
|
|
|
|
|
|
Total liabilities, and equity capital
|
|
$
|
1,727,235
|
|
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby
declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and belief.
John R. Shrewsberry
Sr. EVP & CFO
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Directors
James Quigley
Enrique Hernandez, Jr
Cynthia Milligan