EXHIBIT 4.6

 

FORM OF

 

SENIOR DEBT INDENTURE

 

TRANSMERIDIAN EXPLORATION INCORPORATED

 

to

 

[TRUSTEE]

 

Trustee

 

Dated as of [            ]

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TRANSMERIDIAN EXPLORATION INCORPORATED

 

Certain Sections of this Indenture relating to

Sections 310 through 318, inclusive, of the

Trust Indenture Act of 1939

 

Trust Indenture Act Section		Indenture Section
Section 310(a)(1)		609
(a)(2)		609
(a)(3)		Not Applicable
(a)(4)		Not Applicable
(b)		608
Section 311(a)		613
(b)		613
Section 312(a)		701
		702
(b)		702
(c)		702
Section 313(a)		703
(b)		703
(c)		703
(d)		703
Section 314(a)		704
(a)(4)		101
(b)		Not Applicable
(c)(1)		102
(c)(2)		102
(c)(3)		Not Applicable
(d)		Not Applicable
(e)		102
Section 315(a)		601
(b)		602
(c)		601
(d)		601
(e)		514
Section 316(a)		101
(a)(1)(A)		502
		512
(a)(1)(B)		513
(a)(2)		Not Applicable
(b)		508
(c)		104
Section 317(a)(1)		503
(a)(2)		504
(b)		1003
Section 318(a)		107

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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

 

ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION				1
SECTION 101.		Definitions		1
SECTION 102.		Compliance Certificates and Opinions		7
SECTION 103.		Form of Documents Delivered to Trustee		7
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.		No Adverse Interpretation of Other Agreements		12
SECTION 115.		No Personal Liability of Directors, Officers, Employees and Stockholders		12
SECTION 116.		Language of Notices, Etc.		12
ARTICLE II SECURITY FORMS				13
SECTION 201.		Forms Generally		13
SECTION 202.		Form of Face of Security		13
SECTION 203.		Form of Reverse of Security		15
SECTION 204.		Form of Legend for Global Securities		18
SECTION 205.		Form of Trustee’s Certificate of Authentication		18
ARTICLE III THE SECURITIES				18
SECTION 301.		Amount Unlimited; Issuable in Series		18
SECTION 302.		Denominations		21
SECTION 303.		Execution, Authentication, Delivery and Dating		21
SECTION 304.		Temporary Securities		23
SECTION 305.		Registration, Registration of Transfer and Exchange		23
SECTION 306.		Mutilated, Destroyed, Lost and Wrongfully Taken Securities		25
SECTION 307.		Payment of Interest; Interest Rights Preserved		26
SECTION 308.		Persons Deemed Owners		27
SECTION 309.		Cancellation		27
SECTION 310.		Computation of Interest		28
SECTION 311.		CUSIP Numbers		28
ARTICLE IV SATISFACTION AND DISCHARGE				28
SECTION 401.		Satisfaction and Discharge of Indenture		28
SECTION 402.		Application of Trust Money		29
ARTICLE V REMEDIES				30
SECTION 501.		Events of Default		30
SECTION 502.		Acceleration of Maturity; Rescission and Annulment		31
SECTION 503.		Collection of Indebtedness and Suits for Enforcement by Trustee		32
SECTION 504.		Trustee May File Proofs of Claim		33
SECTION 505.		Trustee May Enforce Claims Without Possession of Securities		33
SECTION 506.		Application of Money Collected		33

 

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SECTION 507.		Limitation on Suits		34
SECTION 508.		Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert		34
SECTION 509.		Restoration of Rights and Remedies		35
SECTION 510.		Rights and Remedies Cumulative		35
SECTION 511.		Delay or Omission Not Waiver		35
SECTION 512.		Control by Holders		35
SECTION 513.		Waiver of Past Defaults		35
SECTION 514.		Undertaking for Costs		36
SECTION 515.		Waiver of Usury, Stay or Extension Laws		36
ARTICLE VI THE TRUSTEE				36
SECTION 601.		Certain Duties and Responsibilities		36
SECTION 602.		Notice of Defaults		37
SECTION 603.		Certain Rights of Trustee		37
SECTION 604.		Not Responsible for Recitals or Issuance of Securities		38
SECTION 605.		May Hold Securities		38
SECTION 606.		Money Held in Trust		38
SECTION 607.		Compensation and Reimbursement		38
SECTION 608.		Conflicting Interests		39
SECTION 609.		Corporate Trustee Required; Eligibility		39
SECTION 610.		Resignation and Removal; Appointment of Successor		40
SECTION 611.		Acceptance of Appointment by Successor		41
SECTION 612.		Merger, Conversion, Consolidation or Succession to Business		42
SECTION 613.		Preferential Collection of Claims Against Company		42
ARTICLE VII 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		43
SECTION 703.		Reports by Trustee		43
SECTION 704.		Reports by Company		44
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE				44
SECTION 801.		Company May Consolidate, Etc., Only on Certain Terms		44
SECTION 802.		Successor Substituted		45
ARTICLE IX SUPPLEMENTAL INDENTURES				45
SECTION 901.		Supplemental Indentures Without Consent of Holders		45
SECTION 902.		Supplemental Indentures With Consent of Holders		46
SECTION 903.		Execution of Supplemental Indentures		47
SECTION 904.		Effect of Supplemental Indentures		48
SECTION 905.		Conformity with Trust Indenture Act		48
SECTION 906.		Reference in Securities to Supplemental Indentures		48
ARTICLE X COVENANTS				48
SECTION 1001.		Payment of Principal, Premium and Interest		48
SECTION 1002.		Maintenance of Office or Agency		48
SECTION 1003.		Money for Securities Payments to Be Held in Trust		49
SECTION 1004.		Statement by Officers as to Default		50
SECTION 1005.		Waiver of Certain Covenants		50
ARTICLE XI REDEMPTION OF SECURITIES				51
SECTION 1101.		Applicability of Article		51
SECTION 1102.		Election to Redeem; Notice to Trustee		51
SECTION 1103.		Selection by Trustee of Securities to Be Redeemed		51

 

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SECTION 1104.		Notice of Redemption		52
SECTION 1105.		Deposit of Redemption Price		53
SECTION 1106.		Securities Payable on Redemption Date		53
SECTION 1107.		Securities Redeemed in Part		53
ARTICLE XII SINKING FUNDS				54
SECTION 1201.		Applicability of Article		54
SECTION 1202.		Satisfaction of Sinking Fund Payments with Securities		54
SECTION 1203.		Redemption of Securities for Sinking Fund		54
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE				55
SECTION 1301.		Company’s Option to Effect Defeasance or Covenant Defeasance		55
SECTION 1302.		Defeasance and Discharge		55
SECTION 1303.		Covenant Defeasance		55
SECTION 1304.		Conditions to Defeasance or Covenant Defeasance		56
SECTION 1305.		Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions		57
SECTION 1306.		Reinstatement		58

 

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SENIOR DEBT INDENTURE, dated as of [                    ], between TRANSMERIDIAN EXPLORATION INCORPORATED, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 397 N. Sam Houston Parkway E, Suite 300, Houston, TX 77060, and [TRUSTEE], a [                    ] banking corporation, 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 debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

 

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

SECTION 101.

Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles;

 

(4) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;

 

(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

 

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(6) when used with respect to any Security, the words “convert,” “converted” and “conversion” are intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or another similar provision of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 301.

 

“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.

 

“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.

 

“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 which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close; provided that, when used with respect to any Security, “Business Day” may have such other meaning, if any, as may be specified for such Security as contemplated by Section 301.

 

“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any two of the following: a Chairman of the Board, a Vice Chairman

 

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of the Board, a President, a Vice President, a Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary of the Company, or any other officer or officers of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time.

 

“Corporate Trust Office” means the principal office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be administered, which at the date hereof is located at [                                                                     ].

 

“Corporation” means a corporation, association, company (including a limited liability company), joint-stock company, business trust or other similar entity.

 

“Covenant Defeasance” has the meaning specified in Section 1303.

 

“Defaulted Interest” has the meaning specified in Section 307.

 

“Defeasance” has the meaning specified in Section 1302.

 

“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 that is designated to act as Depositary for such Securities as contemplated by Section 301.

 

“Event of Default” has the meaning specified in Section 501.

 

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“Expiration Date” has the meaning specified in Section 104.

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.

 

“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

 

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“interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Notice of Default” means a written notice of the kind specified in Section 501(4).

 

“Officers’ Certificate” means a certificate signed by any two of the following: a Chairman of the Board, a Vice Chairman of the Board, a President, a Vice President, a Treasurer, an Assistant Treasurer, a Secretary or an Assistant Secretary of the Company, or any other officer or officers of the Company designated in a writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time. 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 of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

 

“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

 

(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(3) Securities as to which Defeasance has been effected pursuant to Section 1302;

 

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(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and

 

(5) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been duly provided for), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 301;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies, composite 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, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.

 

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Place of Payment,” when used with respect to the Securities of any series and subject to Section 1002, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,

 

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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 wrongfully taken Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or wrongfully taken 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 secretary, any assistant treasurer, any trust officer, any assistant trust officer or any other officer of the Trustee, in each case, located in the Corporate Trust Office of the Trustee, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

 

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.

 

“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means any Person a majority of the combined voting power of the total outstanding ownership interests in which is, at the time of determination, beneficially owned or held, directly or indirectly, by the Company or one or more other Subsidiaries. For this purpose, “voting power” means power to vote in an ordinary election of directors (or, in the case of a Person that is not a corporation, ordinarily to appoint or approve the appointment of Persons holding similar positions), whether at all times or only as long as no senior class of ownership interests has such voting power by reason of any contingency.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

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“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“U.S. Government Obligation” has the meaning specified in Section 1304.

 

“Vice President,” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

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 as may be required under the Trust Indenture Act; provided, however, that no such opinion shall be required in connection with the issuance of Securities of any Series. 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 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

 

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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, or representation by, 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; and, 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. Proof of execution of any such instrument or of a writing appointing any such agent 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.

 

Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, (i) a Holder, including a Depositary or its nominee that is a Holder of a Global Security, may give, make or take, by an agent or agents duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted in or pursuant to this Indenture to be given, made or taken by Holders, and a Depositary or its nominee that is a Holder of a Global Security may duly appoint in writing as its agent or agents members of, or participants in, such Depositary holding interests in such Global Security in the records of such Depositary; and (ii) with respect to any Global Security the Depositary for which is The Depository Trust Company (“D