1
EXHIBIT 4.1
________________________________________________________________________________
OCEAN ENERGY, INC.
SUBSIDIARY GUARANTORS
Named Herein
AND
STATE STREET BANK AND TRUST COMPANY
Trustee
______________________
Indenture
Dated as of July 2, 1997
______________________
$200,000,000
8 7/8% Series A Senior Subordinated Notes due 2007
8 7/8% Series B Senior Subordinated Notes due 2007
________________________________________________________________________________
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 1.3 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 31
Section 1.4 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE II - SECURITY FORMS
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.2 Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.3 Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.4 Form of Notation Relating to Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . 44
Section 2.5 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE III - THE SECURITIES
Section 3.1 Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . 46
Section 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 3.5 Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . 48
Section 3.6 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.7 Additional Provisions for Global Security . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 3.8 Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . 56
Section 3.9 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . 57
Section 3.10 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 3.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 3.12 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 3.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE IV - SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE V - REMEDIES
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . 62
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . 64
Section 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 5.5 Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . 65
Section 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Section 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.12 Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.14 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE VI - THE TRUSTEE
Section 6.1 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.3 Trustee Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . 69
Section 6.4 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.5 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.6 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.7 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.9 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . 71
Section 6.10 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.11 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 72
Section 6.12 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VII - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.2 Reports By Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . 74
Section 8.2 Successor Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . 76
Section 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . 77
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . 78
Section 9.7 Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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ARTICLE X - COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and Interest . . . . . . . . . . . . . . . . . . . 78
Section 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.3 Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 79
Section 10.4 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.5 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.6 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.8 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.9 Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.10 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.11 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.12 Limitation on Guarantees of Indebtedness by Subsidiaries . . . . . . . . . . . . . . . . 86
Section 10.13 Limitation on Issuances and Sale of Capital Stock by Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 10.14 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 10.15 Purchase of Securities Upon Change of Control . . . . . . . . . . . . . . . . . . . . . . 87
Section 10.16 Disposition of Proceeds of Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10.17 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.18 Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.19 Limitation on Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.20 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.21 Suspension of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE XI - REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.2 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.3 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.4 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . 94
Section 11.5 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 11.6 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.7 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.8 Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
ARTICLE XII - DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . 95
Section 12.2 Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 12.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 12.4 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 96
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 12.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
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ARTICLE XIII - GUARANTEES
Section 13.1 Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 13.2 Subsidiary Guarantors May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . 100
Section 13.3 Release of a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.4 Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . 101
Section 13.5 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.6 Execution and Delivery of Notation of Subsidiary Guarantee . . . . . . . . . . . . . . . 101
Section 13.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 13.8 Subsidiary Guarantees Subordinated to Guarantor Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 13.9 Subsidiary Guarantors Not to Make Payments with Respect to Subsidiary
Guarantees in Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 13.10 Subsidiary Guarantees Subordinated to Prior Payment of All Guarantor
Senior Indebtedness upon Dissolution, etc . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 13.11 Holders to be Subrogated to Rights of Holders of Guarantor Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 13.12 Obligations of the Subsidiary Guarantors Unconditional . . . . . . . . . . . . . . . . . 105
Section 13.13 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 13.14 Application by Trustee of Money Deposited with it . . . . . . . . . . . . . . . . . . . . 106
Section 13.15 Subordination Rights Not Impaired by Acts or Omissions of Subsidiary
Guarantors or Holders of Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . 106
Section 13.16 Holders Authorize Trustee to Effectuate Subordination of Subsidiary
Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 13.17 Right of Trustee to Hold Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . 107
Section 13.18 Article XIII Not to Prevent Events of Default . . . . . . . . . . . . . . . . . . . . . . 107
Section 13.19 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
ARTICLE XIV - SUBORDINATION OF SECURITIES
Section 14.1 Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 108
Section 14.2 Payment Over of Proceeds upon Dissolution, etc. . . . . . . . . . . . . . . . . . . . . . 108
Section 14.3 Suspension of Payment When Senior Indebtedness in Default. . . . . . . . . . . . . . . . 109
Section 14.4 Trustee's Relation to Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 110
Section 14.5 Subrogation to Rights of Holders of Senior Indebtedness. . . . . . . . . . . . . . . . . 110
Section 14.6 Provisions Solely To Define Relative Rights. . . . . . . . . . . . . . . . . . . . . . . 111
Section 14.7 Trustee To Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Section 14.8 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Section 14.9 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . 113
Section 14.11 Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Section 14.12 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
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Section 14.13 No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
ARTICLE XV - MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Section 15.2 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 114
Section 15.3 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors . . . . . . . . . . . . . . . 116
Section 15.5 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Section 15.6 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 117
Section 15.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Section 15.8 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Section 15.9 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Section 15.10 Governing Law; Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . 117
Section 15.11 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Section 15.12 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Section 15.13 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Section 15.14 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . 118
EXHIBITS
Exhibit A Certificate to be Delivered Upon Exchange or Registration or Transfer of Securities
Exhibit B Transferee Letter of Representations
Exhibit C Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 2, 1997
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7, 6.8
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
Section 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.8(a)
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Section 316(a) (last
sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3(d)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.10(b)
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
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INDENTURE, dated as of July 2, 1997 between OCEAN ENERGY, INC., a
Delaware corporation (hereinafter called the "Company"), the SUBSIDIARY
GUARANTORS (as defined hereinafter) and STATE STREET BANK AND TRUST COMPANY,
trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 8 7/8% Series
A Senior Subordinated Notes due 2007 (the "Series A Securities") and the
Company's 8 7/8% Series B Senior Subordinated Notes due 2007 (the "Series B
Securities" and, collectively with the Series A Securities, the "Securities" or
each, a "Security").
The Company owns beneficially and of record all of the equity
ownership of the outstanding Voting Stock of the initial Subsidiary Guarantor,
and the initial Subsidiary Guarantor is a member of the Company's consolidated
group of companies that are engaged in related businesses. The initial
Subsidiary Guarantor will derive direct and indirect benefit from the issuance
of the Securities; accordingly, the initial Subsidiary Guarantor has authorized
its guarantee of the Company's obligations under this Indenture and the
Securities, and to provide therefor the initial Subsidiary Guarantor has duly
authorized the execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, to make the
Subsidiary Guarantee, when executed by the Subsidiary Guarantor, the valid
obligation of the Subsidiary Guarantor and to make this Indenture a valid
agreement of the Company, the Subsidiary Guarantor and the Trustee, in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities (together with the related Subsidiary Guarantee) by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities (together with the related Subsidiary
Guarantee), as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person, (b) outstanding at the
time such Person becomes a Subsidiary of any other Person (other than any
Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Subsidiary) or (c) any renewals,
extensions, substitutions, refinancings or replacements (each, for purposes of
this clause, a "refinancing") by the Company of any Indebtedness described in
clause (a) or (b) of this definition, including any successive refinancings, so
long as (i) any such new Indebtedness shall be in a principal amount that does
not exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as of
the date of determination) so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms
of the Indebtedness refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing, plus the
amount of expenses of the Company incurred in connection with such refinancing,
and (ii) in the case of any refinancing of Subordinated Indebtedness, such new
Indebtedness is made subordinate to the Securities at least to the same extent
as the Indebtedness being refinanced and (iii) such new Indebtedness has an
Average Life longer than the Average Life of the Securities and a final Stated
Maturity later than the final Stated Maturity of the Securities.
"Act," when used with respect to any Holder, has the meaning specified
in Section 15.3.
"Adjusted Consolidated Net Tangible Assets" means (without
duplication), as of the date of determination, (a) the sum of (i) discounted
future net revenues from proved oil and gas reserves of the Company and its
Restricted Subsidiaries calculated in accordance with SEC guidelines before any
state or federal income taxes, with no less than 70% of such discounted future
net revenues estimated or audited by one or more nationally recognized firms of
independent petroleum engineers in a reserve report prepared as of the end of
the Company's most recently completed fiscal year, as increased by, as of the
date of determination, the estimated discounted future net revenues from (A)
estimated proved oil and gas reserves acquired since the date of such year-end
reserve report, and (B) estimated oil and gas reserves attributable to upward
revisions of estimates of proved oil and gas reserves since the date of such
year- end reserve report due to exploration, development or exploitation
activities, in each case calculated in accordance with SEC guidelines
(utilizing the prices utilized in such year-end reserve report), and decreased
by, as of the date of determination, the estimated discounted future net
revenues from (C) estimated proved oil and gas reserves produced or disposed of
since the date of such year-end reserve report and (D) estimated oil and gas
reserves attributable to downward revisions of estimates of proved oil and gas
reserves since the date of such year-end reserve report due to changes in
geological conditions or other factors which would, in
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accordance with standard industry practice, cause such revisions, in each case
calculated in accordance with SEC guidelines (utilizing the prices utilized in
such year-end reserve report); provided that, in the case of each of the
determinations made pursuant to clauses (A) through (D), such increases and
decreases shall be as estimated by the Company's petroleum engineers, unless in
the event that there is a Material Change as a result of such acquisitions,
dispositions or revisions, then the discounted future net revenues utilized for
purposes of this clause (a)(i) shall be confirmed in writing by estimate or
audit of one or more nationally recognized firms of independent petroleum
engineers as to at least 70% of such discounted future net revenues, (ii) the
capitalized costs that are attributable to oil and gas properties of the
Company and its Restricted Subsidiaries to which no proved oil and gas reserves
are attributable, based on the Company's books and records as of a date no
earlier than the date of the Company's latest annual or quarterly financial
statements, (iii) the Net Working Capital on a date no earlier than the date of
the Company's latest annual or quarterly financial statements and (iv) the
greater of (I) the net book value on a date no earlier than the date of the
Company's latest annual or quarterly financial statements or (II) the appraised
value, as estimated by independent appraisers, of other tangible assets
(including, without duplication, Investments in unconsolidated Restricted
Subsidiaries) of the Company and its Restricted Subsidiaries, as of the date no
earlier than the date of the Company's latest audited financial statements,
minus (b) the sum of (i) minority interests, (ii) any gas balancing liabilities
of the Company and its Restricted Subsidiaries reflected in the Company's
latest audited financial statements, (iii) to the extent included in (a)(i)
above, the discounted future net revenues, calculated in accordance with SEC
guidelines (utilizing the prices utilized in the Company's year-end reserve
report), attributable to reserves which are required to be delivered to third
parties to fully satisfy the obligations of the Company and its Restricted
Subsidiaries with respect to Volumetric Production Payments on the schedules
specified with respect thereto and (iv) the discounted future net revenues,
calculated in accordance with SEC guidelines, attributable to reserves subject
to Dollar-Denominated Production Payments which, based on the estimates of
production and price assumptions included in determining the discounted future
net revenues specified in (a)(i) above, would be necessary to fully satisfy the
payment obligations of the Company and its Restricted Subsidiaries with respect
to Dollar-Denominated Production Payments on the schedules specified with
respect thereto. If the Company changes its method of accounting from the full
cost method to the successful efforts method or a similar method of accounting,
"Adjusted Consolidated Net Tangible Assets" will continue to be calculated as
if the Company was still using the full cost method of accounting.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the fair value of the Properties of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Subsidiary Guarantee, of such Subsidiary Guarantor at
such date.
"Affiliate" means, with respect to any specified Person, 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 person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether
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through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of this definition, beneficial ownership of 10% or
more of the voting common equity (on a fully diluted basis) or options or
warrants to purchase such equity (but only if exercisable at the date of
determination or within 60 days thereof) of a Person shall be deemed to
constitute control of such Person.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or any Restricted Subsidiary shall be merged
with or into the Company or any other Restricted Subsidiary or (b) the
acquisition by the Company or any Restricted Subsidiary of the Properties of
any Person which constitute all or substantially all of the Properties of such
Person or any division or line of business of such Person.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition to any Person other than the Company or any of its Restricted
Subsidiaries (including, without limitation, by means of a Sale/Leaseback
Transaction or by way of merger or consolidation) (collectively, for purposes
of this definition, a "transfer"), directly or indirectly, in one or a series
of related transactions, of (a) any Capital Stock of any Restricted Subsidiary
held by the Company or any Restricted Subsidiary; (b) all or substantially all
of the Properties of any division or line of business of the Company or any of
its Restricted Subsidiaries; or (c) any other Properties of the Company or any
of its Restricted Subsidiaries other than a disposition of hydrocarbons or
other mineral products in the ordinary course of business. For the purposes of
this definition, the term "Asset Sale" shall not include (i) any transfer of
Properties which is governed by, and made in accordance with, the provisions of
Article VIII hereof; (ii) any transfer of Properties to an Unrestricted
Subsidiary, if permitted under Section 10.10 hereof; (iii) any trade or
exchange by the Company or any Restricted Subsidiary of oil and gas Properties
for other oil and gas Properties owned or held by another Person which the
Board of Directors of the Company determines in good faith to be of
approximately equivalent value; or (iv) any transfer of Properties having a
Fair Market Value of less than $5,000,000.
"Attributable Indebtedness" means, with respect to any particular
lease under which any Person is at the time liable and at any date as of which
the amount thereof is to be determined, the present value of the total net
amount of rent required to be paid by such Person under the lease during the
primary term thereof, without giving effect to any renewals at the option of
the lessee, discounted from the respective due dates thereof to such date of
determination at the rate of interest per annum implicit in the terms of the
lease. As used in the preceding sentence, the "net amount of rent" under any
lease for any such period shall mean the sum of rental and other payments
required to be paid with respect to such period by the lessee thereunder,
excluding any amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges. In the case of any lease which is terminable by the lessee upon
payment of a penalty, such net amount of rent shall also include the amount of
such penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
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"Average Life" means, with respect to any Indebtedness, as at any date
of determination, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years (and any portion thereof) from the date of
determination to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund or mandatory
redemption payment requirements) of such Indebtedness multiplied by (ii) the
amount of each such principal payment by (b) the sum of all such principal
payments.
"Bank Agent" means The Chase Manhattan Bank, N.A. or any successor or
replacement agent under the Credit Agreement.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of such
board of directors, and, with respect to any Restricted Subsidiary, either the
board of directors of such Restricted Subsidiary 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
its Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and with respect to a Restricted
Subsidiary, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Restricted Subsidiary to have been duly adopted by its Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York, New York, or the city in which the Trustee's
Corporate Trust Office is located, are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest
in such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any Property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP, and, for
the purpose of this Indenture, the amount of such obligation at any date shall
be the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 365 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) demand and time deposits and certificates of
deposit or acceptances with a maturity of 365 days or less of any financial
institution that is a member of the Federal
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Reserve System having combined capital and surplus and undivided profits of not
less than $500,000,000; (iii) commercial paper with a maturity of 365 days or
less issued by a corporation that is not an Affiliate of the Company and is
organized under the laws of any state of the United States or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by ▇▇▇▇▇'▇; (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any
commercial bank meeting the specifications of clause (ii) above; and (v)
overnight bank deposits and bankers' acceptances at any commercial bank meeting
the qualifications specified in clause (ii) above.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the F&R Interests, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of more than 50% of the total Voting Stock of the Company; (b)
the Company is merged with or into or consolidated with another Person and,
immediately after giving effect to the merger or consolidation, (A) less than
50% of the total voting power of the outstanding Voting Stock of the surviving
or resulting Person is then "beneficially owned" (within the meaning of Rule
13d-3 under the Exchange Act) in the aggregate by (x) the stockholders of the
Company immediately prior to such merger or consolidation, or (y) if a record
date has been set to determine the stockholders of the Company entitled to vote
on such merger or consolidation, the stockholders of the Company as of such
record date and (B) any "person" or "group" (as defined in Section 13(d)(3) or
14(d)(2) of the Exchange Act), other than the F&R Interests, has become the
direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of the Voting Stock of
the surviving or resulting Person; (c) the Company, either individually or in
conjunction with one or more Restricted Subsidiaries, sells, conveys, transfers
or leases, or the Restricted Subsidiaries sell, convey, transfer or lease, all
or substantially all of the Properties of the Company and the Restricted
Subsidiaries, taken as a whole (either in one transaction or a series of
related transactions), including Capital Stock of the Restricted Subsidiaries,
to any Person (other than the Company or a Wholly Owned Restricted Subsidiary);
(d) during any consecutive two-year period, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (e) the liquidation or
dissolution of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, as
now or hereafter in effect, together with all regulations, rulings and
interpretations thereof or thereunder issued by the Internal Revenue Service.
"Commission" or "SEC" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this
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Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.
"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, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) the sum of Consolidated Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated Non-cash Charges deducted in
computing Consolidated Net Income, in each case, for such period, of the
Company and its Restricted Subsidiaries on a consolidated basis, all determined
in accordance with GAAP, decreased (to the extent included in determining
Consolidated Net Income) by the sum of (x) the amount of deferred revenues that
are amortized during such period and are attributable to reserves that are
subject to Volumetric Production Payments and (y) amounts recorded in
accordance with GAAP as repayments of principal and interest pursuant to
Dollar-Denominated Production Payments, to (b) the sum of such Consolidated
Interest Expense for such period; provided that (i) in making such computation,
the Consolidated Interest Expense attributable to interest on any Indebtedness
required to be computed on a pro forma basis in accordance with clause (x) of
Section 10.11 hereof and bearing a floating interest rate shall be computed as
if the rate in effect on the date of computation had been the applicable rate
for the entire period, (ii) in making such computation, the Consolidated
Interest Expense attributable to interest on any Indebtedness under a revolving
credit facility required to be computed on a pro forma basis in accordance with
clause (x) of Section 10.11 hereof shall be computed based upon the average
daily balance of such Indebtedness during the applicable period, provided that
such average daily balance shall be reduced by the amount of any repayment of
Indebtedness under a revolving credit facility during the applicable period,
which repayment permanently reduced the commitments or amounts available to be
reborrowed under such facility, (iii) notwithstanding clauses (i) and (ii) of
this proviso, interest on Indebtedness determined on a fluctuating basis, to
the extent such interest is covered by agreements relating to Interest Rate
Protection Obligations, shall be deemed to have accrued at the rate per annum
resulting after giving effect to the operation of such agreements and (iv) in
making such calculation, Consolidated Interest Expense shall exclude interest
attributable to Dollar-Denominated Production Payments.
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"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (i) the interest expense of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP, including, without limitation, (a) any amortization of
debt discount, (b) the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (c) the interest portion of any
deferred payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing and (e) all accrued interest, in each case to the extent attributable
to such period, (ii) to the extent any Indebtedness of any Person (other than
the Company or a Restricted Subsidiary) is guaranteed by the Company or any
Restricted Subsidiary, the aggregate amount of interest paid or accrued by such
other Person during such period attributable to any such Indebtedness, in each
case to the extent attributable to that period, (iii) the aggregate amount of
the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP and (iv) the aggregate amount of dividends paid or accrued on Redeemable
Capital Stock or Preferred Stock of the Company and its Restricted
Subsidiaries, to the extent such Redeemable Capital Stock or Preferred Stock is
owned by Persons other than Restricted Subsidiaries.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted by excluding (a) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto),
(b) net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (c) the net income (or net loss) of any Person
(other than the Company or any of its Restricted Subsidiaries), in which the
Company or any of its Restricted Subsidiaries has an ownership interest, except
to the extent of the amount of dividends or other distributions actually paid
to the Company or its Restricted Subsidiaries in cash by such other Person
during such period (regardless of whether such cash dividends, distributions or
interest on indebtedness is attributable to net income (or net loss) of such
Person during such period or during any prior period), (d) net income (or net
loss) of any Person combined with the Company or any of its Restricted
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (e) the net income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary is not at the date of determination
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (f) income resulting from transfers of assets received by the
Company or any Restricted Subsidiary from an Unrestricted Subsidiary and (g)
any writedowns of non-current assets, provided, however, that any ceiling
limitation writedowns under SEC guidelines shall be treated as capitalized
costs, as if such writedowns had not occurred.
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"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Company less the amount of such stockholders'
equity attributable to Redeemable Capital Stock or treasury stock of the
Company and its Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, depletion, amortization and other non-cash expenses of the
Company and its Restricted Subsidiaries reducing Consolidated Net Income for
such period, determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge which requires an accrual of or reserve for
cash charges for any future period).
"Corporate Trust Office" means the corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration, except that with respect to presentation of Securities for
payment or for registration of transfer or exchange, such term shall mean the
office or agency of the Trustee at which, at any particular time, its corporate
agency business shall be conducted.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of March 27, 1997 among the Company and The Chase Manhattan Bank,
N.A., as Agent, as such agreement may be amended, modified, supplemented,
extended, restated, replaced (including replacement after the termination of
such agreement), restructured, increased, renewed or refinanced from time to
time in one or more credit agreements, loan agreements, instruments or similar
agreements, as such may be further amended, modified, supplemented, extended,
restated, replaced (including replacement after the termination of such
agreement), restructured, increased, renewed or refinanced from time to time,
in each case in accordance with and as permitted by the Indenture.
"Credit Agreement Obligations" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, from time to time owed to
the lenders or any agent under or in respect of the Credit Agreement.
"Default" means any event, act or condition that is, or after notice
or passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.9 hereof.
"Definitive Securities" means Securities that are in the form set
forth in Section 2.2 hereto (but without including the paragraph referred to in
the footnote in Section 2.2 hereof).
"Depositary" means with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 3.5 hereof
as the Depositary with respect to the
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Securities, until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and, thereafter,
"Depositary" shall mean or include such successor.
"Designated Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (i) all Guarantor Senior Indebtedness of such Subsidiary
Guarantor under the Credit Agreement Obligations, (ii) all Guarantor Senior
Indebtedness of such Subsidiary Guarantor under the Senior Note Obligations and
(iii) any other Guarantor Senior Indebtedness which (a) at the time of
incurrence equals or exceeds $10,000,000 in aggregate principal amount and (b)
is specifically designated by such Subsidiary Guarantor in the instrument
evidencing such Guarantor Senior Indebtedness as "Designated Guarantor Senior
Indebtedness" for purposes of this Indenture.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Agreement Obligations (ii) all Senior Indebtedness under the
Senior Note Obligations and (iii) any other Senior Indebtedness which (a) at
the time of incurrence equals or exceeds $10,000,000 in aggregate principal
amount and (b) is specifically designated by the Company in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" for
purpose of this Indenture.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors of the
Company is required to deliver a Board Resolution hereunder, a member of the
Board of Directors of the Company who does not have any material direct or
indirect financial interest (other than an interest arising solely from the
beneficial ownership of Capital Stock of the Company) in or with respect to
such transaction or series of transactions.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules, regulations, rulings and
interpretations thereof issued by the Internal Revenue Service or the
Department of Labor thereunder.
"ERISA Affiliate" shall mean any subsidiary or trade or business
(whether or not incorporated) which is a member of a group of which the Company
is a member and which is under common control within the meaning of Section 414
of the Code (such rules and regulations shall also be deemed to apply to
foreign corporations and entities).
"Event of Default" has the meaning specified in Section 5.1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
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"Exchange Offer" means the offer by the Company to the Holders of all
outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Securities, in
an aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Fair Market Value" means the fair market value of a Property
(including shares of Capital Stock) or Redeemable Capital Stock as determined
by a Board Resolution of the Company adopted in good faith, which determination
shall be conclusive for purposes of this Indenture; provided, however, that
unless otherwise specified herein, the Board of Directors shall be under no
obligation to obtain any valuation or assessment from any investment banker,
appraiser or other third party.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
"F&R Interests" means, collectively, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, together with their respective spouses, lineal descendants and
ascendents, heirs, executors or other legal representatives and any trusts
established for the benefit of the foregoing, or any other Person in which the
Persons referred to in the foregoing are at the time of determination the
direct record and beneficial owners of all of the outstanding Capital Stock.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States of America, which are applicable as of the date of this Indenture.
"Guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. When used as a verb,
"guarantee" shall have a corresponding meaning.
"Guarantor" means any Restricted Subsidiary that incurs a Subsidiary
Guarantee.
"Guarantor Senior Indebtedness" means all Indebtedness of a Subsidiary
Guarantor (present and future) created, incurred, assumed or guaranteed by such
Subsidiary Guarantor (and all renewals, substitutions, refinancings or
replacements thereof) (including the principal of, interest on and fees,
premiums, expenses (including costs of collection), indemnities and other
amounts payable in connection with such Indebtedness) (and including, in the
case of the Credit Agreement and any guarantees related to the Senior Notes,
interest accruing after the filing of a petition by or against
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such Subsidiary Guarantor under any bankruptcy law, in accordance with and at
the rate, including any default rate, specified with respect to such
indebtedness, whether or not a claim for such interest is allowed as a claim
after such filing in any proceeding under such bankruptcy law), unless the
instrument governing such Indebtedness expressly provides that such
Indebtedness is not senior in right of payment to its Subsidiary Guarantee.
Notwithstanding the foregoing, Guarantor Senior Indebtedness of a Subsidiary
Guarantor will not include (i) Indebtedness of such Subsidiary Guarantor
evidenced by its Subsidiary Guarantee, (ii) Indebtedness of such Subsidiary
Guarantor that is expressly subordinate or junior in right of payment to any
Guarantor Senior Indebtedness of such Subsidiary Guarantor or its Subsidiary
Guarantee, (iii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11 United States Code, is by its terms
without recourse to such Subsidiary Guarantor, (iv) any repurchase, redemption
or other obligation in respect of Redeemable Capital Stock of such Subsidiary
Guarantor, (v) to the extent it might constitute Indebtedness, any liability
for federal, state, local or other taxes owed or owing by such Subsidiary
Guarantor, (vi) Indebtedness of such Subsidiary Guarantor to the Company or any
of the Company's other Subsidiaries or any other Affiliate of the Company or
any of such Affiliate's Subsidiaries, and (vii) that portion of any
Indebtedness of such Subsidiary Guarantor which at the time of issuance is
issued in violation of the Indenture (but, as to any such Indebtedness, no such
violation shall be deemed to exist for purposes of this clause (vii) if the
holder(s) of such Indebtedness or their representative or such Subsidiary
Guarantor shall have furnished to the Trustee an opinion of counsel unqualified
in all material respects of independent legal counsel, addressed to the Trustee
(which legal counsel may, as to matters of fact, rely upon a certificate of
such Subsidiary Guarantor) to the effect that the incurrence of such
Indebtedness does not violate the provisions of such Indenture); provided that
the foregoing exclusions shall not affect the priorities of any Indebtedness
arising solely by operation of law in any case or proceeding or similar event
described in clause (a), (b) or (c) of the definition of Insolvency or
Liquidation Proceeding.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all liabilities of such Person for borrowed money or for the deferred
purchase price of Property or services, excluding any trade accounts payable
and other accrued current liabilities incurred in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit, bankers'
acceptance or other similar credit transaction and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, if, and to the extent, any of
the foregoing would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, (b) all obligations of such Person evidenced
by bonds, notes, debentures or other similar instruments, if, and to the
extent, any of the foregoing would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, (c) all Indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to Property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such Property), but excluding
trade accounts payable arising
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in the ordinary course of business, (d) all Capitalized Lease Obligations of
such Person, (e) the Attributable Indebtedness (in excess of any related
Capitalized Lease Obligations) related to any Sale/Leaseback Transaction of
such Person, (f) all Indebtedness referred to in the preceding clauses of other
Persons and all dividends of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon Property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness (the amount of such obligation being deemed to be the lesser of
the value of such Property or the amount of the obligation so secured), (g) all
guarantees by such Person of Indebtedness referred to in this definition
(including, with respect to any Production Payment, any warranties or
guaranties of production or payment by such Person with respect to such
Production Payment but excluding other contractual obligations of such Person
with respect to such Production Payment), (h) all Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends, (i) all obligations of such Person
under or in respect of currency exchange contracts and Interest Rate Protection
Obligations and (j) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of such Person of the types referred to
in clauses (a) through (i) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Redeemable Capital Stock, such Fair Market Value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock, provided, however, that if such Redeemable Capital
Stock is not at the date of determination permitted or required to be
repurchased, the "maximum fixed repurchase price" shall be the book value of
such Redeemable Capital Stock. Subject to clause (g) of the first sentence of
this definition, neither Dollar-Denominated Production Payments nor Volumetric
Production Payments shall be deemed to be Indebtedness.
"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.
"Initial Purchasers" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc., Chase Securities Inc., ▇▇▇▇▇▇ Brothers
Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as initial purchasers in the Offering.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, (a) an insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization proceeding or other similar case or
proceeding, relative to such Person or to its creditors, as such, or its
assets, or (b) any liquidation, dissolution or reorganization proceeding of
such Person, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any general assignment for the benefit of
creditors or any other marshalling of assets and liabilities of such Person.
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"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements or arrangements designed to
protect against or manage such Person's and any of its Subsidiaries' exposure
to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan guarantee of Indebtedness or other extension of credit or capital
contribution to (by means of any transfer of cash or other Property to others
or any payment for Property or services for the account or use of others), or
any purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities (including derivatives) or evidences of
Indebtedness issued by, any other Person. In addition, the Fair Market Value
of the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary shall be deemed to be an
"Investment" made by the Company in such Unrestricted Subsidiary at such time.
"Investments" shall exclude (a) extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices, (b) Interest Rate
Protection Obligations entered into in the ordinary course of business or as
required by any Permitted Indebtedness or any Indebtedness incurred in
compliance with Section 10.11 hereof, but only to the extent that the notional
principal amount of such Interest Rate Protection Obligations does not exceed
105% of the principal amount of such Indebtedness to which such Interest Rate
Protection Obligations relate and (c) bonds, notes, debentures or other
securities received as a result of Asset Sales permitted under Section 10.16
hereof.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any agreement to give or ▇▇▇▇▇ ▇ ▇▇▇▇ or any lease, conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing) upon or with respect to any Property of any kind. A Person
shall be deemed to own subject to a Lien any Property which such Person has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement.
"Material Change" means an increase or decrease (excluding changes
that result solely from changes in prices) of more than 50% during a fiscal
quarter in the estimated discounted future net cash flows from proved oil and
gas reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (a)(i) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from
the calculation of Material Change: (i) any acquisitions during the quarter of
oil and gas reserves that have been estimated by
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a nationally recognized firm of independent petroleum engineers and on which a
report or reports exist and (ii) any disposition of Properties existing at the
beginning of such quarter that have been disposed of as provided in Section
10.16 hereof.
"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, Section 414 of the Code or Section 3(37) of ERISA
(or any similar type of plan established or regulated under the laws of any
foreign country) to which the Company or any ERISA Affiliate is making or
accruing or has made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean any employee benefit plan within
the meaning of Section 3(3) of ERISA, other than a Multiemployer Plan, subject
to Title IV of ERISA, to which the Company or any ERISA Affiliate and an
employer other than an ERISA Affiliate or the Company contribute and which is
subject to Section 4064 of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary), net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of legal counsel and investment banks) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the Property subject to the Asset
Sale and (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP consistently applied against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee; provided, however, that any amounts remaining after adjustments,
revaluations or liquidations of such reserves shall constitute Net Cash
Proceeds.
"Net Working Capital" means (i) all current assets of the Company and
its Restricted Subsidiaries, minus (ii) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with GAAP.
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"Non-payment Default" means, for purposes of Article XIV hereof, any
event (other than a Payment Default) the occurrence of which entitles one or
more persons to act to accelerate the maturity of any Designated Senior
Indebtedness.
"Non-recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company incurred in connection with the acquisition by the
Company of any Property and as to which (a) the holders of such Indebtedness
agree that they will look solely to the Property so acquired and securing such
Indebtedness for payment on or in respect of such Indebtedness and (b) no
default with respect to such Indebtedness would permit (after notice or passage
of time or both), according to the terms thereof, any holder of any
Indebtedness of the Company or a Restricted Subsidiary to declare a default on
such Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity.
"Ocean Louisiana" means Ocean Energy, Inc., a Louisiana corporation.
"Offering" means the Offering of the Series A Securities pursuant to
the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the Company,
dated June 26, 1997, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer or the
Treasurer of such Person.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Oil and Gas Business" means (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon Properties, (ii) the gathering, marketing, treating, processing,
storage, refining, selling and transporting of any production from such
interests or Properties, (iii) any business relating to or arising from
exploration for or development, production, treatment, processing, storage,
refining, transportation or marketing of oil, gas and other minerals and
products produced in association therewith, and (iv) any activity necessary,
appropriate or incidental to the activities described in the foregoing clauses
(i) through (iii) of this definition.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (or any Subsidiary Guarantor, if applicable), including
an employee of the Company (or any Subsidiary Guarantor, if applicable), and
who shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, 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;
(iii) Securities, except to the extent provided in Sections
12.2 and 12.3 hereof, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article XII
hereof; and
(iv) Securities which have been paid pursuant to Section
3.8 hereof 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 the
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities
owned by the Company, any Subsidiary Guarantor, or any other obligor upon the
Securities or any Affiliate of the Company, any Subsidiary Guarantor, or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, consent, notice or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company, any Subsidiary
Guarantor, or any other obligor upon the Securities or any Affiliate of the
Company, any Subsidiary Guarantor, or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that
is pari passu in right of payment to the Securities.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (and premium,
if any, on) or interest on any Securities on behalf of the Company.
"Payment Default" means any default in the payment when due (whether
at Stated Maturity, upon scheduled repayment, upon acceleration or otherwise)
of principal of or premium, if any, or
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interest on, or of unreimbursed amounts under drawn letter of credit or fees
relating to letter of credit constituting, any Designated Senior Indebtedness.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PBGC Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA sponsored by the Company or an ERISA Affiliate (excluding
any Multiemployer Plan and any Multiple Employer Plan) and which is subject to
Title IV of ERISA or Section 412 of the Code.
"Permitted Guarantor Junior Securities" means with respect to any
Subsidiary Guarantor, so long as the effect of any exclusion employing this
definition is not to cause such Subsidiary Guarantee to be treated in any case
or proceeding or similar event described in clause (a), (b) or (c) of the
definition of Insolvency or Liquidation Proceeding as part of the same class of
claims as Guarantor Senior Indebtedness of such Subsidiary Guarantor or any
class of claims pari passu with, or senior to, Guarantor Senior Indebtedness of
such Subsidiary Guarantor, for any payment or distribution, debt or equity
securities of such Subsidiary Guarantor or any successor corporation provided
for or by a plan of reorganization or readjustment that are subordinated at
least to the same extent that such Subsidiary Guarantee is subordinated to the
payment of all Guarantor Senior Indebtedness of such Subsidiary Guarantor when
outstanding; provided that (i) if a new corporation results from such
reorganization or readjustment, such corporation assumes any Guarantor Senior
Indebtedness of such Subsidiary Guarantor not paid in full in cash or cash
equivalents in connection with such reorganization or readjustment and (ii) the
rights of the holders of such Guarantor Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Company under one or more bank
credit or revolving credit facilities in an aggregate principal amount
at any one time outstanding not to exceed the greater of (A) $250
million and (B) an amount equal to the sum of (x) $50 million and (y)
25% of Adjusted Consolidated Net Tangible Assets determined as of the
date of the incurrence of such Indebtedness (such greater amount being
referred to as the "Adjusted Maximum Credit Amount") (plus interest
and fees payable under such facilities), less any amounts derived from
Asset Sales and applied to the required permanent reduction of Senior
Indebtedness (and a permanent reduction of the related commitment to
lend in the case of a revolving credit facility) under such credit
facilities as contemplated by Section 10.17(b)(i) hereof (the "Maximum
Credit Amount") (with the Maximum Credit Amount to be an aggregate
maximum amount for the Company and all Restricted Subsidiaries,
pursuant to clause (i) of the definition of "Permitted Subsidiary
Indebtedness"), and any renewals, amendments, extensions, supplements,
modifications, deferrals, refinancings or replacements (each, for
purposes of this clause, a "refinancing") thereof by the Company,
including any successive refinancings thereof by the Company, so long
as the aggregate principal amount of any such new Indebtedness,
together with the aggregate principal amount of all other
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Indebtedness outstanding pursuant to this clause (i) (and clause (i)
of the definition of "Permitted Subsidiary Indebtedness") shall not at
any one time exceed the Maximum Credit Amount;
(ii) Indebtedness of the Company under the Securities;
(iii) Indebtedness of the Company outstanding on the date
of this Indenture (and not repaid or defeased with the proceeds of the
offering of the Securities and the concurrent offering of Common Stock
by the Company);
(iv) obligations of the Company pursuant to Interest Rate
Protection Obligations, but only to the extent such obligations do not
exceed 105% of the aggregate principal amount of the Indebtedness
covered by such Interest Rate Protection Obligations; obligations
under currency exchange contracts entered into in the ordinary course
of business; and hedging arrangements that the Company enters into in
the ordinary course of business for the purpose of protecting its
production against fluctuations in oil or natural gas prices;
(v) Indebtedness of the Company to any Restricted
Subsidiaries;
(vi) in-kind obligations relating to net gas balancing
positions arising in the ordinary course of business and consistent
with past practice;
(vii) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted
Subsidiary in the ordinary course of business, including guarantees
and letters of credit supporting such bid, performance, surety or
other reimbursement obligations (in each case other than for an
obligation for money borrowed);
(viii) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing")
by the Company of any Indebtedness of the Company other than
Indebtedness incurred pursuant to clauses (iv), (vii) and (viii) of
this definition, including any successive refinancings by the Company,
so long as (A) any such new Indebtedness shall be in a principal
amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms
of the Indebtedness refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing,
plus the amount of expenses of the Company incurred in connection with
such refinancing, (B) in the case of any refinancing of Subordinated
Indebtedness, such new Indebtedness is made subordinate to the
Securities at least to the same extent as the Indebtedness being
refinanced and (C) such new Indebtedness has an Average Life equal to
or longer than the Average Life of the
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Indebtedness being refinanced and a final Stated Maturity equal to or
later than the final Stated Maturity of the Indebtedness being
refinanced;
(ix) Non-recourse Indebtedness;
(x) Indebtedness arising from agreements of the Company
or a Restricted Subsidiary providing for indemnification, adjustment
of the purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets
or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition; and
(xi) other Indebtedness of the Company and the Restricted
Subsidiaries that are Subsidiary Guarantors in an aggregate principal
amount not in excess of $25,000,000 at any one time outstanding.
"Permitted Investments" means any of the following: (i) Investments in
Cash Equivalents; (ii) Investments in the Company or any of its Restricted
Subsidiaries; (iii) Investments in an amount not to exceed 5% of Adjusted
Consolidated Net Tangible Assets at any one time outstanding; (iv) Investments
by the Company or any of its Restricted Subsidiaries in another Person, if as a
result of such Investment (A) such other Person becomes a Restricted Subsidiary
of the Company; or (B) such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all of its assets to, the
Company or a Restricted Subsidiary; (v) entry into operating agreements, joint
ventures, partnership agreements, working interests, royalty interests, mineral
leases, processing agreements, farm-out agreements, contracts for the sale,
transportation or exchange of oil and natural gas, unitization agreements,
pooling arrangements, area of mutual interest agreements or other similar or
customary agreements, transactions, properties, interests or arrangements, and
Investments and expenditures in connection therewith or pursuant thereto, in
each case made or entered into in the ordinary course of the Oil and Gas
Business, excluding, however, Investments in corporations; (vi) shares of
Capital Stock or other securities received in settlement of debts owed to the
Company or any of its Restricted Subsidiaries as a result of foreclosure,
perfection or enforcement of any Lien or indebtedness in connection with any
good faith settlement of a bankruptcy proceeding; or (vii) entry into any
hedging arrangements in the ordinary course of business for the purpose of
protecting the Company's or any Restricted Subsidiary's production against
fluctuations in oil or natural gas prices.
"Permitted Junior Securities" means, so long as the effect of any
exclusion employing this definition is not to cause the Securities to be
treated in any case or proceeding or similar event described in clause (a), (b)
or (c) of the definition of Insolvency or Liquidation Proceeding as part of the
same class of claims as Senior Indebtedness or any class of claims pari passu
with, or senior to, Senior Indebtedness, for any payment or distribution, debt
or equity securities of the Company or any successor corporation provided for
or by a plan of reorganization or readjustment that are subordinated at least
to the same extent that the Securities are subordinated to the payment of all
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Senior Indebtedness when outstanding; provided that (i) if a new corporation
results from such reorganization or readjustment, such corporation assumes any
Senior Indebtedness not paid in full in cash or cash equivalents in connection
with such reorganization or readjustment and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date the Securities are
first issued;
(b) Liens securing the Securities;
(c) Liens in favor of the Company or a Restricted
Subsidiary that is a Subsidiary Guarantor;
(d) Liens securing Senior Indebtedness or Guarantor
Senior Indebtedness;
(e) Liens for taxes, assessments and governmental charges
or claims either (i) not delinquent or (ii) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(f) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by GAAP
shall have been made in respect thereof;
(g) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the payment or performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government
contracts and leases, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money but including lessee or operator obligations under
statutes, governmental regulations or instruments related to the
ownership, exploration and production of oil, gas and minerals on
state, Federal or foreign lands or waters);
(h) judgment Liens not giving rise to an Event of Default
so long as any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceeding may be initiated
shall not have expired;
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(i) easements, rights-of-way, restrictions and other
similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries;
(j) any interest or title of a lessor under any
Capitalized Lease Obligation or operating lease;
(k) Liens resulting from the deposit of funds or
evidences of Indebtedness in trust for the purpose of defeasing
Indebtedness of the Company or any of the Subsidiaries;
(l) Liens securing obligations under hedging agreements
that the Company or any Restricted Subsidiary enters into in the
ordinary course of business for the purpose of protecting its
production against fluctuations in oil or natural gas prices;
(m) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(n) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber documents and other
Property relating to such letters of credit and products and proceeds
thereof;
(o) Liens encumbering Property under construction arising
from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such Property;
(p) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
(q) Liens securing Interest Rate Protection Obligations
which Interest Rate Protection Obligations relate to Indebtedness that
is secured by Liens otherwise permitted under this Indenture;
(r) Liens on, or related to, Properties to secure all or
part of the costs incurred in the ordinary course of business for the
exploration, drilling, development or operation thereof;
(s) Liens on pipeline or pipeline facilities which arise
out of operation of law;
(t) Liens arising under operating agreements, joint
venture agreements, partnership agreements, oil and gas leases,
farm-out agreements, division orders, contracts
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for the sale, transportation or exchange of oil and natural gas,
unitization and pooling declarations and agreements, area of mutual
interest agreements and other agreements which are customary in the
Oil and Gas Business;
(u) Liens reserved in oil and gas mineral leases for
bonus or rental payments and for compliance with the terms of such
leases;
(v) Liens constituting survey exceptions, encumbrances,
easements or reservations of, or rights to others for, rights-of-way,
zoning or other restrictions as to the use of real properties, and
minor defects of title which, in the case of any of the foregoing,
were not incurred or created to secure the payment of borrowed money
or the deferred purchase price of Property or services, and in the
aggregate do not materially adversely affect the value of Property of
the Company and the Restricted Subsidiaries, taken as a whole, or
materially impair the use of such Properties for the purposes of which
such Properties are held by the Company or any Restricted
Subsidiaries; and
(w) Liens securing Non-recourse Indebtedness; provided,
however, that the related Non-recourse Indebtedness shall not be
secured by any Property of the Company or any Restricted Subsidiary
other than the Property acquired by the Company with the proceeds of
such Non-recourse Indebtedness;
Notwithstanding anything in clauses (a) through (w) of this definition, the
term "Permitted Liens" does not include any Liens resulting from the creation,
incurrence, issuance, assumption or guarantee of any Production Payments other
than Production Payments that are created, incurred, issued, assumed or
guaranteed in connection with the financing of, and within 30 days after, the
acquisition of the Properties that are subject thereto.
"Permitted Subsidiary Indebtedness" means any of the following:
(i) Indebtedness of any Restricted Subsidiary under one
or more bank credit or revolving credit facilities (and "refinancings"
thereof) in an amount at any one time outstanding not to exceed the
Maximum Credit Amount (in the aggregate for all Restricted
Subsidiaries and the Company, pursuant to clause (i) of the definition
of "Permitted Indebtedness");
(ii) Indebtedness of any Restricted Subsidiary outstanding
on the date of this Indenture;
(iii) obligations of any Restricted Subsidiary pursuant to
Interest Rate Protection Obligations, but only to the extent such
obligations do not exceed the aggregate principal amount of the
Indebtedness covered by such Interest Rate Protection Obligations; and
hedging arrangements that any Restricted Subsidiary enters into in the
ordinary course of
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business for the purpose of protecting its production against
fluctuations in oil or natural gas prices;
(iv) the Subsidiary Guarantees of the Securities and
Senior Notes (and any assumptions of the obligations guaranteed
thereby);
(v) Indebtedness of any Restricted Subsidiary relating to
guarantees by such Restricted Subsidiary of the Indebtedness of the
Company under any bank credit facility that constitutes Permitted
Indebtedness pursuant to clause (i) of the definition of "Permitted
Indebtedness;"
(vi) Indebtedness of any Restricted Subsidiary to any
other Restricted Subsidiary or to the Company;
(vii) Indebtedness relating to guarantees of any Restricted
Subsidiary permitted to be incurred pursuant to Section 10.12 hereof;
and
(viii) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing")
by any Restricted Subsidiary of any Indebtedness of such Restricted
Subsidiary, including any successive refinancings by such Restricted
Subsidiary, so long as (x) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms
of the Indebtedness refinanced or the amount of any premium reasonably
determined by such Restricted Subsidiary as necessary to accomplish
such refinancing, plus the amount of expenses of such Subsidiary
incurred in connection with such refinancing and (y) such new
Indebtedness has an Average Life equal to or longer than the Average
Life of the Indebtedness being refinanced and a final Stated Maturity
equal to or later than the final Stated Maturity of the Indebtedness
being refinanced.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"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 3.8 hereof in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
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"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all classes
and series or preferred or preference stock of such Person.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Public Equity Offering" means an underwritten public offering for
cash by the Company of its Qualified Capital Stock pursuant to a registration
statement that has been declared effective by the Commission (other than a
registration statement on Form S-8 or any successor form or otherwise relating
to equity securities issuable under any employee benefit plan of the Company).
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the Securities or is redeemable at the
option of the holder thereof at any time prior to such final Stated Maturity,
or is convertible into or exchangeable for debt securities at any time prior to
such final Stated Maturity.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, 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.
"Registrable Securities" shall have the meaning assigned to such term
in the Registration Rights Agreement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated as of July 2, 1997, among the Company and the Initial
Purchasers.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
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"Reportable Event" shall mean any event described in Section 4043
(excluding subsections (b)(7) and (b)(9)) of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the provision for
thirty-day notice to the PBGC under such regulations).
"Responsible Officer," when used with respect to the Trustee, means
any officer in the Corporate Trust Administration Department 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.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary of the
Company is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Ratings Group and its successors.
"Sale/Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Properties are sold or
transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
"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 of 1933, as amended, or any
successor statute.
"Security Custodian" means the Trustee, as custodian with respect to
the Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5 hereof.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company (including, in the case of the
Credit Agreement and the Senior Notes, interest accruing after the filing of a
petition by or against the Company under any bankruptcy law, in accordance with
and at the rate, including any default rate, specified with respect to such
indebtedness, whether or not a claim for such interest is allowed as a claim
after such filing in any proceeding under such bankruptcy law), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes. Notwithstanding the foregoing, "Senior Indebtedness"
shall not include (a) Indebtedness evidenced
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by the Notes, (b) Indebtedness that is expressly subordinate or junior in right
of payment to any Senior Indebtedness of the Company, (c) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of
Title 11 United States Code, is by its terms without recourse to the Company,
(d) any repurchase, redemption or other obligation in respect of Redeemable
Capital Stock of the Company, (e) to the extent it might constitute
Indebtedness, any liability for federal, state, local or other taxes owed or
owing by the Company, (f) Indebtedness of the Company to a Subsidiary of the
Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, and (g) that portion of any Indebtedness of the Company which at
the time of issuance is issued in violation of the Indenture (but, as to any
such Indebtedness, no such violation shall be deemed to exist for purposes of
this clause (g) if the holder(s) of such Indebtedness or their representative
or the Company shall have furnished to the Trustee an opinion of counsel
unqualified in all material respects of independent legal counsel, addressed to
the Trustee (which legal counsel may, as to matters of fact, rely upon a
certificate of the Company) to the effect that the incurrence of such
Indebtedness does not violate the provisions of such Indenture); provided that
the foregoing exclusions shall not affect the priorities of any Indebtedness
arising solely by operation of law in any case or proceeding or similar event
described in clause (a), (b) or (c) of the definition of Insolvency or
Liquidation Proceeding.
"Senior Notes" means the 13 1/2% Senior Notes due 2004 of the Company
issued pursuant to the Indenture, dated as of December 1, 1994, between the
Company, as issuer, Ocean Louisiana, as subsidiary guarantor, and State Street
Bank and Trust Company (successor to Shawmut Bank Connecticut, National
Association, as trustee.
"Senior Note Obligations" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, fees, expenses and indemnities, from
time to time owed to the holders or the trustee in respect of the Senior Notes.
"Senior Representative" means the Bank Agent or any other
representatives designated in writing to the Trustee of the holders of any
class or issue of Designated Senior Indebtedness; provided that, in the absence
of a representative of the type described above, any holder or holders of a
majority of the principal amount outstanding of any class or issue of
Designated Senior Indebtedness may collectively act as Senior Representative
for such class or issue, subject to the provisions of any agreements relating
to such Designated Senior Indebtedness.
"Senior Subordinated Note Obligations" means any principal of,
premium, if any, and interest on, and any other amounts (including, without
limitation, any payment obligations with respect to the Securities as a result
of any Asset Sale, Change of Control or redemption) owing in respect of, the
Securities payable pursuant to the terms of the Securities or the Indenture or
upon acceleration of the Securities.
"Series A Securities" means the Company's 8 7/8% Series A Senior Notes
due 2007 to be issued pursuant to this Indenture.
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"Series B Securities" means the Company's 8 7/8% Series B Senior Notes
due 2007 to be issued pursuant to this Indenture in the Exchange Offer.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.9 hereof.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and, when used with respect to any other
Indebtedness or any installment of interest thereon, means the date specified
in the instrument evidencing or governing such Indebtedness as the fixed date
on which the principal of such Indebtedness or such installment of interest is
due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company which is
expressly subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Person performing
similar functions).
"Subsidiary Guarantee" has the meaning specified in Section 13.1
hereof.
"Subsidiary Guarantor" means (i) Ocean Louisiana, (ii) each of the
Company's Restricted Subsidiaries that becomes a guarantor of the Securities in
compliance with the provisions of Section 10.12 or Section 13.1 hereof and
(iii) each of the Company's Subsidiaries executing a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of this Indenture and to
guarantee on an unsubordinated basis the payment of the Securities pursuant to
the provisions of Article XIII hereof.
"Transfer Restricted Securities" means the Registrable Securities
under the Registration Rights Agreement.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was executed,
except as provided in Section 9.5 hereof.
"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 such successor Trustee.
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"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination will be designated an Unrestricted Subsidiary by
the Board of Directors of the Company as provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary of the Company as an Unrestricted Subsidiary so long
as (a) neither the Company nor any Restricted Subsidiary is directly or
indirectly liable pursuant to the terms of any Indebtedness of such Subsidiary;
(b) no default with respect to any Indebtedness of such Subsidiary would permit
(upon notice, lapse of time or otherwise) any holder of any other Indebtedness
of the Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; (c) neither the Company nor any Restricted Subsidiary has
made an Investment in such Subsidiary unless such Investment was made pursuant
to, and in accordance with, Section 10.10 hereof (other than Investments of the
type described in clause (iv) of the definition of Permitted Investments); and
(d) such designation shall not result in the creation or imposition of any Lien
on any of the Properties of the Company or any Restricted Subsidiary (other
than any Permitted Lien or any Lien the creation or imposition of which shall
have been in compliance with Section 10.14 hereof); provided, however, that
with respect to clause (a), the Company or a Restricted Subsidiary may be
liable for Indebtedness of an Unrestricted Subsidiary if (x) such liability
constituted a Permitted Investment or a Restricted Payment permitted by Section
10.10 hereof, in each case at the time of incurrence, or (y) the liability
would be a Permitted Investment at the time of designation of such Subsidiary
as an Unrestricted Subsidiary. Any such designation by the Board of Directors
of the Company shall be evidenced to the Trustee by filing a Board Resolution
with the Trustee giving effect to such designation. The Board of Directors of
the Company may designate any Unrestricted Subsidiary as a Restricted
Subsidiary if, immediately after giving effect to such designation, (i) no
Default or Event of Default shall have occurred and be continuing, (ii) the
Company could incur $1.00 of additional Indebtedness (not including the
incurrence of Permitted Indebtedness) under Section 10.11(a) hereof and (iii)
if any of the Properties of the Company or any of its Restricted Subsidiaries
would upon such designation become subject to any Lien (other than a Permitted
Lien), the creation or imposition of such Lien shall have been in compliance
with Section 10.14 hereof.
"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".
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock
of any other class or classes shall have, or might have, voting power by reason
of the happening of any contingency).
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"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
to the extent all of the Capital Stock or other ownership interests in such
Restricted Subsidiary, other than any directors qualifying shares mandated by
applicable law, is owned directly or indirectly by the Company.
Section 1.2 Other Definitions.
Defined
Term in Section
---- ----------
"Agent Members . . . . . . . . . . . . . . . . . . . . . . . . 3.6
"Change of Control Notice" . . . . . . . . . . . . . . . . . . 10.15(c)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . 10.15(a)
"Change of Control Purchase Date" . . . . . . . . . . . . . . . 10.15(c)
"Change of Control Purchase Price" . . . . . . . . . . . . . . 10.15(a)
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . 3.8
"Global Security" . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . 13.5
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 10.16(b)
"Investment Grade Ratings" . . . . . . . . . . . . . . . . . . 10.21
"Net Proceeds Deficiency" . . . . . . . . . . . . . . . . . . . 10.16(c)
"Net Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Net Proceeds Payment Date" . . . . . . . . . . . . . . . . . . 10.16(c)
"Offered Price" . . . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Pari Passu Indebtedness Amount" . . . . . . . . . . . . . . . 10.16(c)
"Pari Passu Offer" . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Payment Amount" . . . . . . . . . . . . . . . . . . . . . . . 10.16(b)
"Payment Blockage Notice" . . . . . . . . . . . . . . . . . . . 14.3(b)
"Payment Blockage Period" . . . . . . . . . . . . . . . . . . 14.3(b)
"Physical Securities" . . . . . . . . . . . . . . . . . . . . . 2.1
"Permitted Payments" . . . . . . . . . . . . . . . . . . . . . 10.10(b)
"Purchase Notice" . . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Rating Agencies" . . . . . . . . . . . . . . . . . . . . . . . 10.21
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . 10.10(a)
"Subsidiary Guarantor Non-payment Default" . . . . . . . . . . 13.9(b)
"Subsidiary Guarantor Payment Default" . . . . . . . . . . . . 13.9(a)
"Subsidiary Guarantor Payment Notice" . . . . . . . . . . . . . 13.9(b)
"Surviving Entity" . . . . . . . . . . . . . . . . . . . . . . 8.1(a)
"Suspended Covenants" . . . . . . . . . . . . . . . . . . . . . 10.21
"Trigger Date" . . . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . 12.4(a)
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Section 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities,
"indenture security holder" means a Holder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the
Trustee, and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.4 Rules of Construction. For all purposes of
this Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(c) 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;
(d) unless the context otherwise requires, the word "or"
is not exclusive;
(e) provisions apply to successive events and
transactions; and
(f) references to agreements and other instruments
include subsequent amendments and waivers but only to the extent not prohibited
by this Indenture.
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ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally. 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 or notations of Subsidiary Guarantees, as the case may be, as
evidenced by their execution of such Securities or notations of Subsidiary
Guarantees, as the case may be.
Securities (including the notations thereon relating to the
Subsidiary Guarantees and the Trustees certificate of authentication) bought
and sold in reliance on Rule 144A shall be issued initially in the form of one
or more permanent global Securities substantially in the form set forth in
Sections 2.2 through 2.5 hereof (the "Global Security") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Subject to the
limitation set forth in Section 3.1, the principal amount of the Global
Securities may be increased or decreased from time to time by adjustments made
on the records of the Trustee as custodian for the Depositary, as hereinafter
provided.
Securities (including the notations thereon relating to the
Subsidiary Guarantees and the Trustees certificate of authentication) offered
and sold other than as described in the preceding paragraph shall be issued in
the form of permanent certificated Securities in registered form in
substantially the for set forth in Sections 2.2 through 2.5 hereto ("Physical
Securities").
The Securities, the notations thereon relating to the
Subsidiary Guarantees and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, 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 as may,
consistently herewith, be determined by the officers executing such Securities
or notations of Subsidiary Guarantees, as the case may be, as evidenced by
their execution of the Securities or notations of Subsidiary Guarantees, as the
case may be. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security. In addition to the requirements of Section 2.3, the Securities may
also have set forth on the reverse side thereof a form of assignment and forms
to elect purchase by the Company pursuant to Sections 10.15 and 10.16 hereof.
Section 2.2 Form of Face of Security.
OCEAN ENERGY, INC.
8 7/8% Series [A/B] Senior Subordinated Note due 2007
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No. _____ $__________
CUSIP No. [Series A:__________]
[Series B:__________]
Ocean Energy, Inc., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________ or registered assigns the principal sum of
_______________ Dollars on July 15, 2007, at the office or agency of the
Company referred to below, and to pay interest thereon, commencing on January
15, 1998 and continuing semiannually thereafter, on January 15 and July 15 in
each year, from July 2, 1997, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 8 7/8% per
annum, until the principal hereof is paid or duly provided for, and (to the
extent lawful) to pay on demand interest on any overdue interest at the rate
borne by the Securities from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided
for. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date, and such defaulted
interest, and (to the extent lawful) interest on such defaulted interest at the
rate borne by the Securities, may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any, on) and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, or at such other office or
agency of the Company as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided however, that payment
of interest may be made at the option of the Company (i) by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register or (ii) with respect to any Holder owning Securities in the
principal amount of $500,000 or more, by wire transfer to an account maintained
by the Holder located in the United States, as specified in a written notice to
the Trustee by any such Holder requesting payment by wire transfer and
specifying the account to which transfer is requested.
[Unless and until it is exchanged in whole or in part for Securities in
definitive form, this 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
33
41
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. The Depository Trust Company shall act as the Depositary
until a successor shall be appointed by the Company and the Registrar. Unless
this certificate is presented by an authorized representative of The Depository
Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as may be requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](1)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DAY ON WHICH OCEAN ENERGY, INC.
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR")
THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN THE
INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT TO THIS CLAUSE (D) PRIOR TO
THE EXPIRATION OF THE "40-DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE
903(c)(3) OF REGULATION S
---------------------------------
(1) This paragraph should be included only if the Security
is issued in global form.
34
42
UNDER THE SECURITIES ACT), (E) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECK CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS NOTE),
AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS SPECIFIED IN THE
INDENTURE (AS DEFINED BELOW) PRIOR TO THE EXPIRATION OF THE "40-DAY RESTRICTED
PERIOD" (WITHIN THE MEANING OF RULE 903(C)(3) OF REGULATION S UNDER THE
SECURITIES ACT), A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7)
UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF)
PARAGRAPH (o)(2) OF RULE 902 UNDER REGULATION S UNDER THE SECURITIES ACT.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
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43
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
OCEAN ENERGY, INC.
By:
-------------------------------------
Chairman of the Board
Attest:
------------------------------
Secretary
Section 2.3 Form of Reverse of Security. This Security
is one of a duly authorized issue of securities of the Company designated as
its 8 7/8% Series [A/B] Senior Notes due 2007 (herein called the "Securities"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $200,000,000, which may be issued under an
indenture (herein called the "Indenture") dated as of July 2, 1997 between the
Company, the Subsidiary Guarantors and State Street Bank and Trust Company, as
trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Subsidiary Guarantors, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness (as defined
in the Indenture) and this Security is issued subject to such provisions. Each
Holder of this Security, by accepting the same, (i) agrees to and shall be
bound by such provisions, (ii) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (iii) appoints the Trustee as
his attorney-in-fact for such purpose.
The Securities are subject to redemption, at the option of the
Company, in whole or in part, at any time on or after July 15, 2002, upon not
less than 30 or more than 60 days' notice at the following Redemption Prices
(expressed as percentages of principal amount) set forth below if redeemed
during the 12-month period beginning July 15 of the years indicated below:
36
44
Redemption
Year Price
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.438%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.958%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.479%
2005 and thereafter . . . . . . . . . . . . . . . . . . . . . . . 100.000%
together in the case of any such redemption with accrued and unpaid interest,
if any, to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), all as provided in the
Indenture.
At any time and from time to time prior to July 15, 2000, the
Company may, at its option, redeem Securities in an amount in the aggregate
equal to up to $70,000,000 of the aggregate principal amount of Securities
originally issued under the Indenture with the proceeds of one or more Public
Equity Offerings by the Company at a redemption price (expressed as a
percentage of principal amount) of 108.875% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the applicable Redemption Date
(subject to the right of Holders of Securities on the relevant record date to
receive interest due on the relevant Interest Payment Date); provided, however,
that at least $130,000,000 million aggregate principal amount of the Securities
must remain outstanding after each such redemption. In order to effect the
foregoing redemption, the Company must mail notice of redemption no later than
60 days after the related Public Equity Offering and must consummate such
redemption within 90 days of the closing of the Public Equity Offering.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Date
referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date. In the event of
redemption or purchase of this Security in part only, a new Security or
Securities for the unredeemed or unpurchased portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
The Securities do not have the benefit of any sinking fund
obligations.
In the event of a Change of Control of the Company, and
subject to certain conditions and limitations provided in the Indenture, the
Company will be obligated to make an offer to purchase, on a Business Day not
more than 70 or less than 30 days following the occurrence of a Change of
Control of the Company, all of the then outstanding Securities at a purchase
price equal to 101% of the principal amount thereof, together with accrued and
unpaid interest to the Change of Control Purchase Date, all as provided in the
Indenture.
37
45
In the event of Asset Sales, under certain circumstances, the
Company will be obligated to make a Net Proceeds Offer to purchase all or a
specified portion of each Holder's Securities at a purchase price equal to 100%
of the principal amount of the Securities, together with accrued and unpaid
interest to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is
generally (i) failure to pay principal upon maturity, redemption or otherwise
(including pursuant to a Change of Control Offer or a Net Proceeds Offer); (ii)
default for 30 days in payment of interest on any of the Securities; (iii)
default in the performance of agreements relating to mergers, consolidations
and sales of all or substantially all assets or the failure to make or
consummate a Change of Control Offer or a Net Proceeds Offer; (iv) failure for
30 days after notice to comply with any other covenants in the Indenture or the
Securities; (v) certain payment defaults under, the acceleration prior to the
maturity of, and the exercise of certain enforcement rights with respect to,
certain Indebtedness of the Company or any Subsidiary Guarantor in an aggregate
principal amount in excess of $10,000,000; (vi) the failure of any Subsidiary
Guarantee to be in full force and effect or otherwise to be enforceable (except
as permitted by the Indenture); (vii) certain events giving rise to ERISA
liability; (viii) certain final judgments against any Subsidiary Guarantor or
other Restricted Subsidiary in an aggregate amount of $10,000,000 or more which
remain unsatisfied and either become subject to commencement or enforcement
proceedings or remain unstayed for a period of 60 days; and (ix) certain events
of bankruptcy, insolvency or reorganization of the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary. If any Event of Default occurs
and is continuing, the Trustee or the holders of at least 25% in aggregate
principal amount of the Outstanding Securities may declare the principal amount
of all the Securities to be due and payable immediately, except that (i) in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Restricted Subsidiary, the
principal amount of the Securities will become due and payable immediately
without further action or notice, and (ii) in the case of an Event of Default
which relates to certain payment defaults, acceleration or the exercise of
certain enforcement rights with respect to certain Indebtedness, any
acceleration of the Securities will be automatically rescinded if any such
Indebtedness is repaid or if the default relating to such Indebtedness is cured
or waived and if the holders thereof have accelerated such Indebtedness then
such holders have rescinded their declaration of acceleration or if in certain
circumstances the proceedings or enforcement action with respect to the
Indebtedness that is the subject of such Event of Default is terminated or
rescinded. No Holder may pursue any remedy under the Indenture unless the
Trustee shall have failed to act after notice of an Event of Default and
written request by Holders of at least 25% in principal amount of the
Outstanding Securities, and the offer to the Trustee of indemnity reasonably
satisfactory to it; however, such provision does not affect the right to ▇▇▇
for enforcement of any overdue payment on a Security by the Holder thereof.
Subject to certain limitations, Holders of a majority in principal amount of
the Outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing
default (except default in payment of principal, premium or interest) if it
determines in good faith that withholding the notice is in the interest of the
Holders. The Company is required to file quarterly reports with the Trustee as
to the absence or existence of defaults.
38
46
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of the Company on this Security and (ii) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Subsidiary Guarantors and the rights of the
Holders under the Indenture at any time by the Company, the Subsidiary
Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Security. Without the consent of any Holder, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities
and to make certain other specified changes and other changes that do not
adversely affect the rights of any Holder.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any, on) and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
39
47
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 payable in
connection therewith.
A director, officer, incorporator, or stockholder of the
Company or any Subsidiary Guarantor, as such, shall not have any personal
liability under this Security or the Indenture by reason of his or its status
as such director, officer, incorporator or stockholder. Each Holder, by
accepting this Security with the notation of Subsidiary Guarantee endorsed
hereon, waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of this Security with the notation
of Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Subsidiary Guarantors, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security is overdue, and neither the Company, the Subsidiary
Guarantors, the Trustee nor any agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders
thereof. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identifying information printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of law
principles.
40
48
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to ___________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
_________________ as agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
----------------------------- --------------------------
(Sign exactly as your
name appears on the face
of this Security)
Signature Guarantee:
------------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
41
49
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 10.15 or Section 10.16 of the Indenture, check the
appropriate box:
Section 10.15 [ ] Section 10.16 [ ]
If you want to have only part of this Security purchased by the
Company pursuant to Section 10.15 or Section 10.16 of the Indenture, state the
amount in integral multiples of $1,000:
$________________
Date: Your Signature:
----------------------------- --------------------------
(Sign exactly as your
name appears on the face
of this Security)
Signature
Guarantee:
----------------------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
42
50
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITY(*)
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Security following authorized signatory
Principal Amount Principal Amount such decrease of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
---------------- ----------------------- ----------------------- ----------------------- ------------------
----------------------------------------
(*) This should be included only if the Security is issued in global form.
43
51
Section 2.4 Form of Notation Relating to Subsidiary
Guarantees. The form of notation to be set forth on each Security relating to
the Subsidiary Guarantees shall be in substantially the following form:
SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the
Subsidiary Guarantors (as defined in the Indenture referred to in the Security
upon which this notation is endorsed and each hereinafter referred to as a
"Subsidiary Guarantor," which term includes any successor or additional
Subsidiary Guarantor under the Indenture) have, jointly and severally,
unconditionally guaranteed (a) the due and punctual payment of the principal
(and premium, if any) of and interest on the Securities, whether at maturity,
acceleration, redemption or otherwise, (b) the due and punctual payment of
interest on the overdue principal of and interest on the Securities, if any, to
the extent lawful, (c) the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance
with the terms set forth in the Indenture, and (d) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Capitalized terms used herein shall have the
meanings assigned to them in the Indenture unless otherwise indicated.
The obligations of each Subsidiary Guarantor are limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee
or pursuant to its contribution obligations under the Indenture, result in the
obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Subsidiary Guarantor that makes a payment or distribution
under a Subsidiary Guarantee shall be entitled to a contribution from each
other Subsidiary Guarantor in a pro rata amount based on the Adjusted Net
Assets of each Subsidiary Guarantor.
The obligations of the Subsidiary Guarantors to the Holders or
the Trustee pursuant to the Subsidiary Guarantee and the Indenture are
expressly subordinate to all Guarantor Senior Indebtedness to the extent set
forth in Article XIII of the Indenture and reference is made to such Indenture
for the precise terms of such subordination.
No stockholder, officer, director or incorporator, as such,
past, present or future, of the Subsidiary Guarantors shall have any personal
liability under the Subsidiary Guarantee by reason of his or its status as such
stockholder, officer, director or incorporator.
Any Subsidiary Guarantor may be released from its Subsidiary
Guarantee upon the terms and subject to the conditions provided in the
Indenture.
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52
All terms used in this notation of Subsidiary Guarantee which
are defined in the Indenture referred to in this Security upon which this
notation of Subsidiary Guarantee is endorsed shall have the meanings assigned
to them in such Indenture.
The Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof and in the
Indenture.
The Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.
OCEAN ENERGY, INC.
Attest: By:
------------------------------ -------------------------------------
Secretary President
Section 2.5 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 7/8% Series [A/B] Senior Subordinated
Notes due 2007 referred to in the within- mentioned Indenture.
Authenticated:
Dated:
--------------------
State Street Bank and Trust Company
Trustee
By:
-------------------------------------
Authorized Officer
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53
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is limited to $200,000,000 except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.4, 3.5, 3.6, 3.7, 3.8, 9.6, 10.15, 10.16
or 11.8 hereof.
The Securities shall be known and designated as the "8 7/8%
Series A Senior Subordinated Notes Due 2007" and the "8 7/8% Series B Senior
Subordinated Notes due 2007" of the Company. Their Stated Maturity shall be
July 15, 2007, and they shall bear interest at the rate of 8 7/8% per annum
from July 2, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semiannually on January 15
and July 15 in each year, commencing January 15, 1998, and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid (i) by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Security Register, or (ii) with respect to any Holder owning Securities in the
principal amount of $500,000 or more, by wire transfer to an account maintained
by the Holder located in the United States, as specified in a written notice to
the Trustee by any such Holder requesting payment by wire transfer and
specifying the account to which transfer is requested.
The Securities shall be redeemable as provided in Article XI
hereof.
The Securities shall be subject to defeasance at the option of
the Company as provided in Article XII hereof.
The Securities shall be guaranteed by the Subsidiary
Guarantors as provided in Article XIII hereof.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article XIV hereof.
Section 3.2 Denominations. The Securities shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and
Dating. The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President of the Company, under its corporate
seal reproduced thereon and attested by its Secretary or an Assistant Secretary
or a Vice President of the Company. The signature of any of these officers on
the Securities may be manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced on
the Securities.
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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 executed by the
Company and having the notation of Subsidiary Guarantees executed by the
Subsidiary Guarantors to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities with the notation of Subsidiary Guarantees thereon as provided
in this Indenture.
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 duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with
Article VIII hereof, shall be consolidated or merged with or into any other
Person or shall convey, transfer, lease or otherwise dispose of its Properties
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company
shall have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article VIII hereof,
any of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other Securities
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Request of the successor Person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in
any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
Section 3.4 Temporary Securities. Pending the
preparation of Definitive Securities, 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 having the notations of
Subsidiary Guarantees thereon and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
and notations of Subsidiary Guarantees may determine, as conclusively evidenced
by their execution of such Securities and notations of Subsidiary Guarantees.
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If temporary Securities are issued, the Company will cause
Definitive Securities to be prepared without unreasonable delay. After the
preparation of Definitive Securities, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 10.2 hereof, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Securities of authorized denominations
having notations of Subsidiary Guarantees thereon. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as Definitive Securities.
Section 3.5 Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.2 hereof being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Security Register shall be
in written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times and during normal business
hours, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Securities and transfers of
Securities as herein provided.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Security.
Section 3.6 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Securities Registrar with the
request:
(x) to register the transfer of the Definitive
Securities, or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Securities Registrar shall register the transfer or make the exchange as
requested if its requirement for such transactions are met; provided, however,
that the Definitive Securities presented or surrendered for registration of
transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder thereof or by his attorney, duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities
that are Definitive Securities, shall be accompanied by the following
additional information and documents, as applicable, upon which the
Securities Registrar may conclusively rely:
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(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form of
Exhibit A hereto); or
(B) if such Transfer Restricted Securities are
being transferred (1) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with Rule 144 under
the Securities Act (and based upon an opinion of counsel if
the Company or the Trustee so requests) or (3) pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit A hereto); or
(C) if such Transfer Restricted Securities are
being transferred to an institutional "accredited investor,"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act pursuant to a private placement exemption
from the registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit A hereto) and a
certification from the applicable transferee (in substantially
the form of Exhibit B hereto) and an opinion of counsel to
that effect if the Company or the Trustee so requests;
(D) if such Transfer Restricted Securities are
being transferred pursuant to an exemption from registration
in accordance with Rule 904 under the Securities Act,
certifications to that effect from such Holder (in
substantially the form of Exhibits A and C hereto) and an
opinion of counsel to that effect if the Company or the
Trustee so requests; or
(E) if such Transfer Restricted Securities are
being transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit A hereto) and an opinion of
counsel to that effect if the Company or the Trustee so
requests.
(b) Restriction on Transfer of a Definitive Security for
a Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee, together with the
following additional information and documents, as applicable, upon which the
Trustee may conclusively rely:
(i) if such Definitive Security is a Transfer
Restricted Security, certification, substantially in the form of
Exhibit A hereto that such Definitive Security is being transferred to
a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act;
or
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(ii) if such Definitive Security is a Transfer
Restricted Security and is being transferred pursuant to an exemption
from registration in accordance with Rule 904 under the Securities
Act, certifications to that effect from such Holder (in substantially
the form of Exhibits A and C hereto) and an opinion of counsel to that
effect if the Company or Trustee so requests; and
(iii) whether or not such Definitive Security is a
Transfer Restricted Security written instructions directing the
Trustee to make, or direct the Security Custodian to make, an
endorsement on the Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security;
then the Trustee shall cancel such Definitive Security in accordance with
Section 3.10 hereof and cause, or direct the Security Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Security Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If
no Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(d) Transfer of a Beneficial Interest in a Global
Security for a Definitive Security.
(i) Any Person having a beneficial interest in a
Global Security may upon request exchange such beneficial interest for
a Definitive Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for
the Depositary, from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Global Security, and in the
case of a Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile), upon which the Trustee may conclusively rely:
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such Person
to that effect (in substantially the form of Exhibit A
hereto); or
(B) if such beneficial interest is being
transferred (1) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with Rule 144 under
the Securities Act (and based upon an opinion of counsel to
that effect if the Company or the Trustee so requests) or (3)
pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit A hereto); or
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(C) if such beneficial interest is being
transferred to an institutional "accredited investor," within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from
the registration requirements of the Securities Act (and based
upon an opinion of counsel to that effect if the Company or
the Trustee so requests), a certification to that effect from
such transferor (in substantially the form of Exhibit A
hereto) and a certification from the applicable transferee (in
substantially the form of Exhibit B hereto); or
(D) if such beneficial interest is being
transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (and based
upon an opinion to that effect of counsel if the Company or
the Trustee so requests), certifications to that effect from
such transferor (in substantially the form of Exhibits A and C
hereto); or
(E) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act (and based
upon an opinion of counsel to that effect if the Company or
the Trustee so requests), a certification to that effect from
such transferor (in substantially the form of Exhibit A
hereto);
the Trustee or the Security Custodian, at the direction of the Trustee, shall,
in accordance with the standing instructions and procedures existing between
the Depositary and the Security Custodian, cause the aggregate principal amount
of Global Securities to be reduced accordingly and, following such reduction,
the Company shall execute and the Trustee shall authenticate and deliver to the
transferee a Definitive Security in the appropriate principal amount.
(ii) Definitive Securities issued in exchange for
a beneficial interest in a Global Security pursuant to this Section
3.6(d) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Securities to the
Persons in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 3.6), a Global
Security may not be transferred as a whole except 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 such nominee
to a successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Securities in Absence of
Depositary. If at any time:
(i) the Depositary for the Securities notifies
the Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Securities and a successor Depositary for
the Global Securities is not appointed by the Company within 90 days
after delivery of such notice;
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(ii) an Event of Default has occurred and is
continuing and the Security Registrar has received a request from the
Depositary to issue Definitive Securities in lieu of all or a portion
of the Global Security (in which case the Company shall deliver
Definitive Securities within 30 days of such request); or
(iii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture,
then the Company will execute, and the Trustee will authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the principal
amount of the Global Securities, in exchange for such Global Securities and
registered in such names as the Depositary shall instruct the Trustee or the
Company in writing.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii) immediately below, each Security certificate
evidencing the Global Securities and the Definitive Securities (and
all Securities issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DAY ON WHICH OCEAN ENERGY, INC.
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR")
THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN THE
INDENTURE MAY NOT TRANSFER THIS SECURITY
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PURSUANT TO THIS CLAUSE (D) PRIOR TO THE EXPIRATION OF THE "40-DAY RESTRICTED
PERIOD" (WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE
SECURITIES ACT), (E) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECK CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS NOTE), AND, IF
SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS SPECIFIED IN THE
INDENTURE (AS DEFINED BELOW) PRIOR TO THE EXPIRATION OF THE "40-DAY RESTRICTED
PERIOD" (WITHIN THE MEANING OF RULE 903(C)(3) OF REGULATION S UNDER THE
SECURITIES ACT), A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7)
UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF)
PARAGRAPH (o)(2) OF RULE 902 UNDER REGULATION S UNDER THE SECURITIES ACT.
Each Security certificate evidencing the Global Securities also shall bear the
paragraph referred to in the first footnote of the form of Security in Section
2.2 hereof.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule 144 under the
Securities Act or an effective registration statement under the
Securities Act, which shall be certified to the Trustee and Security
Registrar upon which each may conclusively rely:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the Security Registrar
shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not
bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Security, such Transfer
Restricted Security shall not be required to bear the legend
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set forth in (i) above if all other interests in such Global
Security have been or are concurrently being sold or
transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, but such Transfer Restricted Security shall
continue to be subject to the provisions of Section 3.6(c)
hereof; provided, however, that with respect to any request
for an exchange of a Transfer Restricted Security that is
represented by a Global Security for a Definitive Security
that does not bear a legend set forth in (i) above, which
request is made in reliance upon Rule 144 under the Securities
Act, the Holder thereof shall certify in writing to the
Security Registrar that such request is being made pursuant to
Rule 144 under the Securities Act (such certification to be
substantially in the form of Exhibit A hereto and upon which
the Security Registrar may conclusively rely).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 3.3
hereof, the Trustee shall authenticate Series B Securities in exchange
for Series A Securities accepted for exchange in the Exchange Offer,
which Series B Securities shall not bear the legend set forth in (i)
above, and the Security Registrar shall rescind any restriction on the
transfer of such Securities, in each case unless the Holder of such
Series A Securities is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Series A Securities or (C) a
Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of the Company. The Company shall identify to the
Trustee such Holders of the Securities in a written certification
signed by an Officer of the Company and, absent certification from the
Company to such effect, the Trustee shall assume that there are no
such Holders.
(h) Cancellation and/or Adjustment of Global Security.
At such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
canceled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Trustee or the Security Custodian, at the direction of the
Trustee to reflect such reduction.
(i) General Provisions with respect to Transfer and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Definitive Securities and Global Securities at the
Security Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange or redemption of
Securities (except as otherwise permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other
than such transfer tax or similar governmental charge payable upon
exchanges pursuant to the last paragraph of Section 3.3 or Sections
3.4, 9.6 or 11.8 hereof).
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(iii) The Trustee shall authenticate Definitive
Securities and Global Securities in accordance with the provisions of
Section 3.3 hereof.
(iv) Notwithstanding any other provisions of this
Indenture to the contrary, the Company shall not be required to
register the transfer or exchange of a Security between a Regular
Record Date and the next succeeding Interest Payment Date.
(v) Neither the Company nor the Trustee will have
any responsibility or liability for any aspect of the records relating
to, or payments made on account of, Securities by the Depositary, or
for maintaining, supervising or reviewing any records of the
Depositary relating to such Securities. Neither the Company nor the
Trustee shall be liable for any delay by the related Global Security
Holder or the Depositary in identifying the beneficial owners of the
related Securities and each such Person may conclusively rely on, and
shall be protected in relying on, instructions from such Global
Security Holder or the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal
amounts, of the Securities to be issued).
(vi) Neither the Trustee, the Security Registrar
nor the Company shall be required (A) to issue, register the transfer
of or exchange any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of
Securities selected for redemption under Section 11.4 hereof and
ending at the close of business on the day of such mailing of the
relevant notice of redemption, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(vii) All Securities and the Subsidiaries
Guarantees, if any, noted thereon issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of
the Company and the respective Subsidiary Guarantors, if any,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
(viii) Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Holder's Security in
violation of any provision of this Indenture and/or applicable federal
or state securities law.
(ix) The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
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Section 3.7 Additional Provisions for Global Security.
(a) The Global Security initially shall be registered in
the name of the Depositary for such Global Security or the nominee of such
Depositary and be delivered to the Trustee as custodian for such Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a holder of any
Security.
(b) The registered holder of the Global Security may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.
Section 3.8 Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security is surrendered to the Trustee or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each 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, the Subsidiary Guarantors shall execute the notations of
Subsidiary Guarantees, and upon Company Order the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, having the notations of Subsidiary Guarantees thereon bearing a number
not contemporaneously outstanding.
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 issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the respective Subsidiary
Guarantors, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
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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 3.9 Payment of Interest; Interest Rights
Preserved. 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 such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 10.2 hereof.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by
virtue of having been such Holder, and such defaulted interest and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security 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 shall be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date, and
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided for in Section 15.5 hereof, 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 given, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (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 (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall
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carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 3.10 Persons Deemed Owners. Prior to the due
presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Security Registrar, the Trustee and any agent of the
Company, the Subsidiary Guarantors or the Trustee may treat the Person in whose
name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any, on) and (subject to
Section 3.9 hereof) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Subsidiary Guarantors, the Security Registrar, the Trustee or any agent of
the Company, the Subsidiary Guarantors or the Trustee shall be affected by
notice to the contrary.
Section 3.11 Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange 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 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 destroyed and
a certificate of their destruction delivered to the Company unless by a Company
Order the Company shall direct that cancelled Securities be returned to it.
Section 3.12 Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
Section 3.13 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; 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 promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except
as to surviving rights of registration of transfer or exchange of Securities,
as expressly provided for in this Indenture) as to all outstanding Securities,
and the Trustee, at the expense of the Company, shall, upon payment of all
amounts due
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the Trustee under Section 6.6 hereof, execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(a) either
(1) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.8 hereof and (ii)
Securities for whose payment money or United States
governmental obligations of the type described in clause (i)
of the definition of Cash Equivalents has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3 hereof) have been delivered to the
Trustee for cancellation, or
(2) 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 (2)(i), (2)(ii) or (2)(iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) 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, together with
instructions from the Company irrevocably directing the
Trustee to apply such funds to the payment thereof at maturity
or redemption, as the case may be; and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company.
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
satisfactory in form to the Trustee, which, taken together,
state that all conditions precedent herein 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 6.6
hereof and, if money shall have been deposited with
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the Trustee pursuant to subclause (ii) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2 hereof and the last paragraph of
Section 10.3 hereof shall survive.
Section 4.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3 hereof, all money deposited
with the Trustee pursuant to Section 4.1 hereof 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 premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
Section 5.1 Events of Default. "Event of Default,"
wherever used herein, 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):
(a) default in the payment of the principal of or
premium, if any, on any of the Securities, whether such payment is due at
maturity, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ pursuant to a Change of Control
Offer or a Net Proceeds Offer, upon acceleration or otherwise; or
(b) default in the payment of any installment of interest
on any of the Securities, when it becomes due and payable, and the continuance
of such default for a period of 30 days; or
(c) default in the performance or breach of the
provisions of Article VIII hereof, the failure to make or consummate a Change
in Control Offer in accordance with the provisions of Section 10.15 or the
failure to make or consummate a Net Proceeds Offer in accordance with the
provisions of Section 10.16; or
(d) the Company or any Subsidiary Guarantor in this
Indenture shall fail to perform or observe any other term, covenant or
agreement contained in the Securities, any Subsidiary Guarantee or this
Indenture (other than a default specified in (a), (b) or (c) above) for a
period of 30 days after written notice of such failure requiring the Company to
remedy the same shall have been given (x) to the Company by the Trustee or (y)
to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities then Outstanding; or
(e) the occurrence and continuation beyond any applicable
grace period of any default in the payment of the principal of (or premium, if
any, on) or interest on any Indebtedness of the Company (other than the
Securities) or any Subsidiary Guarantor or any other Restricted Subsidiary for
money borrowed when due, or any other default causing acceleration of any
Indebtedness of the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary for money borrowed, provided, that the aggregate principal amount of
such Indebtedness shall exceed $10,000,000; or
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(f) the commencement of proceedings, or the taking of any
enforcement action (including by way of set-off), by any holder of at least
$10,000,000 in aggregate principal amount of Indebtedness of the Company or any
Subsidiary Guarantor or any other Restricted Subsidiary, after a default under
such Indebtedness, to retain in satisfaction of such Indebtedness or to collect
or seize, dispose of or apply in satisfaction of such Indebtedness, Property or
assets of the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary having a Fair Market Value in excess of $10,000,000 individually or
in the aggregate; or
(g) any Subsidiary Guarantee shall for any reason cease
to be, or be asserted by the Company or any Subsidiary Guarantor, as
applicable, not to be, in full force and effect, enforceable in accordance with
its terms (except pursuant to the release of any such Subsidiary Guarantee in
accordance with this Indenture); or
(h) if (i) any material "accumulated funding deficiency"
(as defined in Section 302 of ERISA or Section 412 of the Code), shall exist
with respect to any PBGC Plan or Multiple Employer Plan (unless a waiver or
extension is obtained under Section 412(d) or (e) of the Code and Sections 303
and 304 of ERISA), if such accumulated funding deficiency would give rise to a
material liability of the Company, (ii) a Reportable Event shall occur with
respect to any PBGC Plan or Multiple Employer Plan, which Reportable Event is
likely to result in the termination of such PBGC Plan or Multiple Employer Plan
for purposes of Title IV of ERISA and to give rise to a material liability of
the Company, (iii) proceedings to have a trustee appointed, or proceedings to
have a trustee appointed shall commence, or a trustee shall be appointed to
terminate or administer a PBGC Plan or Multiple Employer Plan which proceeding
is likely to result in the termination of such PBGC Plan or Multiple Employer
Plan and to give rise to a material liability of the Company with respect to
such termination, (iv) a notice of intent to terminate a PBGC Plan or Multiple
Employer Plan in a distress termination under Section 4041(c) of ERISA is
furnished to participants, (v) any Multiemployer Plan is in reorganization or
is insolvent and the circumstances are such that such reorganization or
insolvency will likely result in a material liability to the Company, (vi)
there is a complete or partial withdrawal from a Multiemployer Plan under
circumstances that would likely subject the Company to material liability, or
(vii) any event or condition described in (i) through (vi) above (determined
without regard to whether the event or condition taken alone would or could
result in a material liability) shall occur or exist with respect to a PBGC
Plan, Multiple Employer Plan or Multiemployer Plan which in combination with
one or more of any events described in (i) through (vi) above (determined
without regard to whether the event or condition taken alone would or could
result in a material liability) that has occurred or exists, would likely
subject the Company, any Subsidiary Guarantor or any other Restricted
Subsidiary to any material tax, penalty or other liability (for purposes of
this paragraph (i) the term "material" and "material liability" shall mean any
tax, penalty or liability in excess of $10,000,000); or
(i) final judgments or orders rendered against the
Company or any Subsidiary Guarantor or any other Restricted Subsidiary that are
unsatisfied and that require the payment in money, either individually or in an
aggregate amount, that is more than $10,000,000 over the coverage under
applicable insurance policies and either (i) commencement by any creditor of an
enforcement proceeding upon such judgment (other than a judgment that is stayed
by reason of pending appeal or otherwise) or (ii) the occurrence of a 60-day
period during which a stay of such judgment or order, by reason of pending
appeal or otherwise, was not in effect; or
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(j) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Company or any
Subsidiary Guarantor or any other Restricted Subsidiary in an involuntary case
or proceeding under the Federal Bankruptcy Code or any other applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or (ii)
adjudging the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary bankrupt or insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or a
Restricted Subsidiary under the Federal Bankruptcy Code or any applicable
federal or state law, or appointing under any such law a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary Guarantor or any other Restricted Subsidiary or of a
substantial part of their consolidated assets, or ordering the winding up or
liquidation of their affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(k) the commencement by the Company or any Subsidiary
Guarantor or any other Restricted Subsidiary of a voluntary case or proceeding
under the Federal Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Subsidiary Guarantor or any other Restricted Subsidiary to the
entry of a decree or order for relief in respect thereof in an involuntary case
or proceeding under the Federal Bankruptcy Code or 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 the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary of a petition or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it under any such law to the
filing of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of any of the Company or any Subsidiary Guarantor or any
other Restricted Subsidiary or of any substantial part of their consolidated
assets, or the making by it of an assignment for the benefit of creditors under
any such law, or the admission by it in writing of its inability to pay its
debts generally as they become due or taking of corporate action by the Company
or any Subsidiary Guarantor or any other Restricted Subsidiary in furtherance
of any such action.
Section 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
Section 5.1(j) or (k) hereof) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
then Outstanding, by written notice to the Company (and to the Trustee if such
notice is given by the Holders), may, and the Trustee upon the request of the
Holders of not less than 25% in principal amount of the Outstanding Securities
shall, by a notice in writing to the Company (and to the Trustee if given by
the Holders), declare all unpaid principal of, premium, if any, and accrued
interest on all the Securities to be due and payable immediately, upon which
declaration all amounts payable in respect of the Securities shall be
immediately due and payable. If an Event of Default specified in Section
5.1(j) or (k) hereof occurs and is continuing, the amounts described above
shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration 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 Securities Outstanding, by
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written notice to the Company, the Subsidiary Guarantors and the Trustee, may
rescind and annul such declaration and its consequences if
(a) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay,
(1) all overdue interest on all Outstanding
Securities,
(2) all unpaid principal of (and premium, if any,
on) any Outstanding Securities which has become due otherwise
than by such declaration of acceleration including any
Securities required to have been purchased on a Change of
Control Date or a Net Proceeds Payment Date pursuant to a
Change of Control Offer or a Net Proceeds Offer, as
applicable, and interest on such unpaid principal at the rate
borne by the Securities,
(3) to the extent that payment of such interest
is lawful, interest on overdue interest and overdue principal
at the rate borne by the Securities (without duplication of
any amount paid or deposited pursuant to clauses (1) and (2)
above), and
(4) 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 rescission would not conflict with any judgement
or decree of a court of competent jurisdiction as certified to the Trustee by
the Company; and
(c) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Securities
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13 hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the foregoing, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in (i) Section 5.1(e) hereof shall have occurred and be continuing,
such declaration of acceleration and any consequential acceleration shall be
automatically rescinded if the Indebtedness that is the subject of such Event
of Default has been repaid, or if the default relating to such Indebtedness is
waived or cured and if such Indebtedness has been accelerated, then the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness (provided, in each case, that such repayment, waiver, cure or
rescission is effected within a period of 10 days from the continuation of such
default beyond the applicable grace period or the occurrence of such
acceleration), or (ii) Section 5.1(f) hereof shall have occurred and be
continuing, such declaration and any consequential acceleration shall be
automatically rescinded if the proceedings or enforcement action with respect
to the Indebtedness that is the subject of such Event of Default are terminated
or rescinded, or such Indebtedness has been repaid and only so long as the
Holder of such Indebtedness shall not have applied any Property referenced in
such Section 5.1(f) hereof in satisfaction of such Indebtedness, and, in the
case of both (i) and (ii) above, written
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notice of such repayment, or cure or waiver and rescission, as the case may be,
shall have been given to the Trustee by the Company and countersigned by the
holders of such Indebtedness or a trustee, fiduciary or agent for such holders
or other evidence satisfactory to the Trustee of such events is provided to the
Trustee, within 30 days after such declaration of acceleration in respect of
the Securities, and no other Event of Default has occurred during such 30-day
period which has not been cured or waived during such period, and so long as
such recision of the declaration of acceleration of the Securities does not
conflict with any judgement or decree as certified to the Trustee by the
Company.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof or with respect
to any Security required to have been purchased by the Company on the Change of
Control Purchase Date or the Net Proceeds Payment Date pursuant to a Change of
Control Offer or a Net Proceeds Offer, as applicable,
the Company will, upon demand of the Trustee, 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 premium, if any) and interest,
and interest on any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installment of interest, at the rate borne by the 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 upon such
demand, the Trustee, in its own name 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 the 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 the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 5.4 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, the Subsidiary Guarantors or any other
obligor upon the Securities or the Property of the Company, the Subsidiary
Guarantors or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
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irrespective of whether the Trustee shall have made any demand on the Company,
the Subsidiary Guarantors or such other obligor for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents and take any other
actions including participation as a full member of any creditor or other
committee 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
(b) to collect and receive any moneys or other Property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.6 hereof.
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 Subsidiary Guarantees or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this Indenture or the
Securities or the Subsidiary Guarantees 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 and 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 5.6 Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in the case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6 hereof;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on,) 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,
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according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company.
Section 5.7 Limitation on Suits. No Holder of any
Securities 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
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount
of the Outstanding Securities 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;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 5.8 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, as provided herein (including, if
applicable, Article XII hereof) and in such Security of the principal of (and
premium, if any, on) and (subject to Section 3.9 hereof) 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 5.9 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Subsidiary Guarantors, the Trustee and the Holders
shall be restored severally and
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respectively to their former positions hereunder and thereunder and all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 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 3.8
hereof, 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 5.11 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security 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 5.12 Control by Holders. The Holders of not less
than a majority in principal amount of the Outstanding Securities 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
(a) such direction shall not be in conflict with any rule
of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the Holders not
joining therein.
Section 5.13 Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any existing Default or Event
of Default hereunder and its consequences, except a Default or Event of Default
(a) in respect of the payment of the principal of (or
premium, if any, on) or interest on any Security, or
(b) in respect of a covenant or provision hereof which
under Article IX hereof cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected.
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Upon any such waiver, such Default or Event of Default shall
cease to exist for every purpose under this Indenture, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
Section 5.14 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent that
each may lawfully do so) that it will not at any time insist upon, plead or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension, or usury law or other law, which would prohibit or forgive the
Company or any Subsidiary Guarantor from paying all or any portion of the
principal of (premium, if any, on) and/or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) each of the Company and the Subsidiary
Guarantors hereby expressly waives all benefit or advantage of any such law,
and covenant that they 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 VI
THE TRUSTEE
Section 6.1 Notice of Defaults. Within 60 days after the
occurrence of any Default hereunder, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any, on) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders; and provided,
further, that in the case of any Default of the character specified in Section
5.1(e) hereof, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
Section 6.2 Certain Rights of Trustee. Subject to the
provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) 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 may be sufficiently evidenced by a
Board Resolution;
(c) 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
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hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) 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;
(g) 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; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to advance, expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
Section 6.3 Trustee Not Responsible for Recitals or
Issuance of Securities. The recitals contained herein and in the Securities
and the notations of Subsidiary Guarantees thereon, except for the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder, and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth herein. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
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Section 6.4 May Hold Securities. The Trustee, any Paying
Agent, any Security Register or any other agent of the Company, any Subsidiary
Guarantor or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to TIA Sections 310(b)
and 311, may otherwise deal with the Company and the subsidiary Guarantors with
the same rights it would have if it were not the Trustee, Paying Agent,
Security Registrar or such other agent.
Section 6.5 Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company or any Subsidiary Guarantor.
Section 6.6 Compensation and Reimbursement. The Company
agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel, except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence or
bad faith); and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, (i) arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder or (ii) in connection with
enforcing this indemnification provision.
The obligations of the Company under this Section 6.6 to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or any other termination under any Insolvency
or Liquidation Proceeding. As security for the performance of such obligations
of the Company, the Trustee shall have a claim and lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for payment of principal of (and premium, if any, on) or
interest on particular Securities. Such lien shall survive the satisfaction
and discharge of this Indenture or any other termination under any Insolvency
or Liquidation Proceeding.
When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in paragraphs (j) or (k) of Section
5.1 of this Indenture, such expenses and the compensation for such services are
intended to constitute expenses of administration under any Insolvency or
Liquidation Proceeding.
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Section 6.7 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to act
as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 6.7, the combined capital and surplus of
such corporation 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 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 6.8 Conflicting Interests. The Trustee shall
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 6.9 Resignation and Removal; Appointment of
Successor.
(a) 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 6.10 hereof.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.10 hereof shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) 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 6.7 hereof and shall fail to resign 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
(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, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least
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six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) 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, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, 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 appointment of a
successor Trustee. The evidence of such successorship may, but need not be,
evidenced by a supplemental indenture.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 14.5 hereof. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all amounts due it under
Section 6.6 hereof, 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. 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.
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 6.11 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 of 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
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authenticated such Securities; and in case at that time any of the Securities
shall not have been authenticated, any successor Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.12 Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company or any such other obligor.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the
Company, the Subsidiary Guarantors, the Security Registrar and the Trustee that
none of the Company, the Subsidiary Guarantors, the Security Registrar or the
Trustee, or 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 TIA Section 312, 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
TIA Section 312(b).
Section 7.2 Reports By Trustee. Within 60 days after May
15 of each year commencing with May 15, 1998, the Trustee shall transmit by
mail to the Holders, as their names and addresses appear in the Security
Register, a brief report dated as May 15 of such in accordance with and to the
extent required under TIA Section 313(a). The Trustee shall also comply with
TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or automatic quotation
system.
A copy of each Trustee's report, at the time of its mailing to
Holders of Securities, shall be mailed to the Company and filed with the
Commission and each stock exchange, if any, on which the Securities are listed.
Section 7.3 Reports by Company. The Company (and the
Subsidiary Guarantors, if applicable) shall:
(a) file with the Trustee, within 15 days after the
Company (and the Subsidiary Guarantors, if applicable) is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the
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Company (and the Subsidiary Guarantors, if applicable) may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company (and the Subsidiary Guarantors, if applicable) is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company (and the Subsidiary Guarantors, if applicable) with
the conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(c) transmit by mail to all Holders, in the manner and to
the extent provided in TIA Section 313(c), within 30 days after the filing
thereof with Trustee, such summaries of any information, documents and reports
required to be filed by the Company (and the Subsidiary Guarantors, if
applicable) pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only on
Certain Terms. The Company shall not, in any single transaction or a series of
related transactions, merge or consolidate with or into any other Person, or
sell, assign, convey, transfer or lease or otherwise dispose of all or
substantially all its Properties to any Person or group of Affiliated Persons,
and the Company shall not permit any of its Restricted Subsidiaries to enter
into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the Properties of the Company and its Restricted Subsidiaries on a consolidated
basis to any other Person or group of Affiliated Persons, unless at the time
and after giving affect thereto:
(a) either (i) if the transaction or transactions is a
merger or consolidation, the Company shall be the surviving Person of such
merger or consolidation, or (ii) the Person (if other than the Company) formed
by such consolidation or into which the Company or such Restricted Subsidiary
is merged or to which the Properties of the Company or such Restricted
Subsidiary, as the case may be, are sold, assigned, conveyed, transferred,
leased or otherwise disposed of (any such surviving Person or transferee Person
being the "Surviving Entity") shall be a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall, in either case, expressly assume by a
supplemental indenture to this Indenture executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company for the
due and punctual payment of the principal of (and premium, if any, on) and
interest on all the Securities and the performance and observance of every
covenant of this Indenture on the
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part of the Company to be performed or observed, and this Indenture shall
remain in full force and effect;
(b) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma basis (and
treating any Indebtedness not previously an obligation of the Company or any of
its Restricted Subsidiaries which becomes the obligation of the Company or any
of its Restricted Subsidiaries in connection with or as a result of such
transaction or transactions as having been incurred at the time of such
transaction or transactions), no Default or Event of Default shall have
occurred and be continuing;
(c) except in the case of the consolidation or merger of
any Restricted Subsidiary with or into the Company, immediately after giving
effect to such transaction or transactions on a pro forma basis, the
Consolidated Net Worth of the Company (or the Surviving Entity if the Company
is not the continuing obligor under this Indenture) is at least equal to the
Consolidated Net Worth of the Company immediately before such transaction or
transactions (calculated in each case, in accordance with GAAP);
(d) except in the case of the consolidation or merger of
any Restricted Subsidiary with or into the Company or any Wholly Owned
Restricted Subsidiary, immediately before and after giving effect to such
transaction or transactions on a pro forma basis (on the assumption that the
transaction or transactions occurred on the first day of the period of four
full fiscal quarters ending immediately prior to the consummation of such
transaction or transactions with the appropriate adjustments with respect to
the transaction or transactions being included in such pro forma calculation)
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) under Section 10.11(a) hereof;
(e) each Subsidiary Guarantor unless it is the party to
the transactions described above, shall have by supplemental indenture
confirmed that its Subsidiary Guarantee shall apply to such Person's
obligations under this Indenture and the Securities;
(f) if any of the Properties of the Company or any of its
Restricted Subsidiaries would upon such transaction or series of related
transactions become subject to any Lien (other than a Permitted Lien), the
creation or imposition of such Lien shall have been in compliance with Section
10.14 hereof; and
(g) the Company or such Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel in form and
substance reasonably acceptable to the Trustee, each stating that such
consolidation, merger, conveyance, transfer, lease or other disposition and, if
a supplemental indenture is required in connection with such transaction, such
supplemental indenture, complies with this Indenture and that all conditions
precedent herein relating to such transaction or transactions have been
satisfied.
Section 8.2 Successor Substituted. Upon any
consolidation of the Company with or merger of the Company with or into any
other corporation or any sale, assignment, lease, conveyance, transfer or other
disposition of all or substantially all of the Properties of the Company to any
Person in accordance with Section 8.1 hereof, the successor Person formed by
such
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consolidation or into which the Company is merged or to which such sale,
assignment, conveyance, transfer or other disposition (other than by 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 in the event of any
such sale, assignment, lease, conveyance, transfer or other disposition, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person
which shall theretofore become such in the manner described in Section 8.1
hereof), except in the case of a lease, shall be discharged of all obligations
and covenants under this Indenture and the Securities and the Company may be
dissolved and liquidated and such dissolution and liquidation shall not cause a
Change of Control under clause (e) of the definition thereof to occur unless
the merger, or the sale, assignment, lease, conveyance, transfer or other
disposition of all or substantially all of the Properties of the Company to any
Person otherwise results in a Change of Control.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company contained herein and in the Securities; or
(b) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the requirements of
Sections 6.9 and 6.10 hereof; or
(e) 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 in any material respect; or
(f) to secure the Securities pursuant to the requirements
of Section 10.14 hereof or otherwise; or
(g) to add any Person as a Subsidiary Guarantor as
provided in Section 13.1 hereof or as contemplated by the definition of
"Permitted Subsidiary Indebtedness" to evidence the
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succession of another Person to any Guarantor and the assumption by any such
successor of the covenants and agreements of such Subsidiary Guarantor
contained herein, in the Securities and in the Subsidiary Guarantee; or
(h) to release a Subsidiary Guarantor from its Guarantee
pursuant to Section 10.12 hereof; or
(i) to provide for uncertificated Securities in addition
to or in place of certificated Securities.
Section 9.2 Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, the Subsidiary Guarantors, 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 under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of 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 the coin or currency in which any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage of aggregate principal amount
of the Outstanding Securities, 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
(c) modify any of the provisions of this Section or
Sections 5.13 and 10.20 hereof, 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;
(d) modify Section 10.12 hereof or any provisions of this
Indenture relating to the Subsidiary Guarantees in a manner adverse to the
Holders thereof; or
(e) amend, change or modify the obligation of the Company
to make and consummate a Change of Control Offer in the event of a Change of
Control, or to make and consummate a Net Proceeds Offer with respect to any
Asset Sale or modify any of the provisions or definitions with respect thereto.
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It shall not be necessary for any Act of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3 Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4 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 9.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company, with the notations of Subsidiary Guarantees thereon
executed by the Subsidiary Guarantors, and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
Section 9.7 Notice of Supplemental Indentures. Promptly
after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of Section 9.2 hereof, the Company shall
give notice thereof to the Holders of each Outstanding Security affected, in
the manner provided for in Section 15.5 hereof, setting forth in general terms
the substance of such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders that
it will duly and punctually pay the principal of (and premium, if any, on) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
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Section 10.2 Maintenance of Office or Agency. The Company
shall maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities,
the Subsidiary Guarantees and this Indenture may be served. The office of
State Street Bank and Trust Company, N.A. located at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust Window, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of 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 or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the aforementioned office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; 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 the Borough of Manhattan, The
City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in
the location of any such other office or agency.
Section 10.3 Money for Security Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of the principal of (and premium, if any, on) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) 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
the Securities, it will, on or before 12:00 noon on each due date of the
principal of (and premium, if any, on), or interest on, any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
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 shall promptly notify the Trustee of
such action or any failure so to act.
The Company shall cause each Paying Agent (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:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any, on) or interest on Securities in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
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(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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 sums.
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 (and
premium, if any, on) or interest on any Security and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.4 Corporate Existence. Except as expressly
permitted by Article VIII hereof, Section 10.16 hereof or other provisions of
this Indenture, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect the corporate existence, rights
(charter and statutory) and franchises of the Company and each Restricted
Subsidiary; provided, however, that the Company shall not be required to
preserve any such existence of its Restricted Subsidiaries, 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 its
Restricted Subsidiaries, taken as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 10.5 Payment of Taxes and Other Claims. The
Company shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Restricted Subsidiary or upon
the income, profits or Property of the Company or any Restricted Subsidiary and
(b) all lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a Lien upon the Property of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made in
accordance with GAAP.
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Section 10.6 Maintenance of Properties. The Company shall
cause all material Properties owned by the Company or any Restricted Subsidiary
and used or held for use in the conduct of its business or the business of any
Restricted Subsidiary to be maintained and kept in good condition, repair and
working order (ordinary wear and tear excepted), all as in the judgment of the
Company may be necessary so that its business may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such Properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
Notwithstanding the foregoing, nothing contained in this Section 10.6 shall
limit or impair in any way the right of the Company and its Restricted
Subsidiaries to sell, divest and otherwise to engage in transactions that are
otherwise permitted by this Indenture.
Section 10.7 Insurance. The Company shall at all times
keep all of its and its Restricted Subsidiaries' Properties which are of an
insurable nature insured with insurers, believed by the Company to be
responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties.
The Company may adopt such other plan or method of protection,
in lieu of or supplemental to insurance with insurers, whether by the
establishment of an insurance fund or reserve to be held and applied to make
good losses from casualties, or otherwise, conforming to the systems of
self-insurance maintained by corporations similarly situated and owning like
properties, as may be determined by the Board of Directors.
Section 10.8 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company and within 45 days of the
end of each of the first, second and third quarters of each fiscal year of the
Company, an Officers' Certificate stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal quarter or fiscal
year, as applicable, has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may
have knowledge and what action the Company is taking or proposes to take with
respect thereto). Such Officers' Certificate shall comply with TIA Section
314(a)(4). For purposes of this Section 10.8(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company and the Subsidiary Guarantors shall, so
long as any of the Securities are outstanding, deliver to the Trustee forthwith
upon any Officer becoming aware of any Default or Event of Default or default
in the performance of any covenant, agreement or condition contained in this
Indenture, an Officers' Certificate specifying such Default or Event of Default
and
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what action the Company or any Subsidiary Guarantor proposes to take with
respect thereto within 10 days of its occurrence.
Section 10.9 Provision of Financial Information. The
Company and the Subsidiary Guarantors shall file with the Trustee (with
exhibits) and deliver to each Holder (without exhibits), within 15 days after
it files them with the Commission, copies of the annual and quarterly reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may by rules and regulations
prescribe) which each of the Company and the Subsidiary Guarantors is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act. If the Company is not subject to the requirements of Section 13 or 15(d)
of the Exchange Act, the Company shall nonetheless file with the Commission and
the Trustee copies of such annual reports and such information, documents and
other reports as it would file if it were subject to the requirements of
Section 13 or 15(d) of the Exchange Act. If filing such reports and documents
with the Commission is not accepted by the Commission or is prohibited under
the Exchange Act, the Company shall supply at the Company's cost copies of such
reports and documents to any holder of Securities promptly upon written
request. The Company is obligated to make available, upon request, to any
Holder of Securities the information required by Rule 144A(d)(4) under the
Securities Act, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act. So long as any Transfer Restricted
Securities remain outstanding during any period in which the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company shall furnish
to all Holders and prospective purchasers of the Securities designated by the
Holders of Transfer Restricted Securities, promptly upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) of the
Securities Act. The Company and each Subsidiary Guarantor also shall comply
with the other provisions of TIA Section 314(a).
Section 10.10 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, take the following actions:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's Capital Stock
(other than dividends or distributions payable solely in shares of
Qualified Capital Stock of the Company or in options, warrants or
other rights to purchase Qualified Capital Stock of the Company);
(ii) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any Affiliate thereof (other
than any Wholly Owned Restricted Subsidiary of the Company) or any
options, warrants or other rights to acquire such Capital Stock;
(iii) make any principal payment on or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, scheduled sinking fund payment or
maturity, any Subordinated Indebtedness;
(iv) declare or pay any dividend on, or make any
distribution to the holders of, any shares of Capital Stock of any
Restricted Subsidiary of the Company (other than to the
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Company or any of its Wholly Owned Restricted Subsidiaries) or
purchase, redeem or otherwise acquire or retire for value any Capital
Stock of any Restricted Subsidiary or any options, warrants or other
rights to acquire any such Capital Stock (other than with respect to
any such Capital Stock held by the Company or any Wholly Owned
Restricted Subsidiary of the Company);
(v) make any Investment (other than any Permitted
Investment);
(vi) in connection with the acquisition of any Property by
the Company or its Restricted Subsidiaries after the date of this
Indenture, which Property would secure or be subject to any Production
Payment obligations of the Company or its Restricted Subsidiaries,
make any investment (of cash, Property or other assets) in such
Property so acquired in addition to the amount of Indebtedness
(including Production Payment obligations) incurred by the Company or
its Restricted Subsidiaries in connection with such acquisition; or
(vii) incur, create, assume or suffer to exist any
guarantee of Indebtedness of any Affiliate (other than (a) guarantees
of Indebtedness of any Restricted Subsidiary by the Company or (b)
guarantees of Indebtedness of the Company by any Restricted
Subsidiary, in each case in accordance with the terms of this
Indenture);
(such payments or other actions described in (but not excluded from) clauses
(i) through (vii) are collectively referred to as "Restricted Payments"),
unless at the time of and after giving effect to the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, shall
be the amount determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), (A) no
Default or Event of Default shall have occurred and be continuing, (B) the
Company could incur $1.00 of additional Indebtedness (excluding Permitted
Indebtedness) in accordance with Section 10.11 hereof and (C) the aggregate
amount of all Restricted Payments declared or made after the date of this
Indenture shall not exceed the sum (without duplication) of the following:
(1) 50% of the aggregate cumulative Consolidated Net
Income of the Company accrued on a cumulative basis during the period
beginning on September 30, 1996 and ending on the last day of the
Company's last fiscal quarter ending prior to the date of such
proposed Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss),
plus
(2) the aggregate net cash proceeds received after the
date of this Indenture by the Company as capital contributions to the
Company (other than from any Restricted Subsidiary), plus
(3) the aggregate net cash proceeds received after the
date of this Indenture by the Company from the issuance or sale (other
than to any of its Restricted Subsidiaries) of shares of Qualified
Capital Stock of the Company or any option, warrants or rights to
purchase such shares of Qualified Capital Stock of the Company, plus
(4) the aggregate net cash proceeds received after the
date of this Indenture by the Company (other than from any of its
Restricted Subsidiaries) upon the exercise of any
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options, warrants or rights to purchase shares of Qualified Capital
Stock of the Company, plus
(5) the aggregate net cash proceeds received after the
date of this Indenture by the Company from the issuance or sale (other
than to any of its Restricted Subsidiaries) of debt securities or
shares of Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock of the Company to the extent
such debt securities were originally sold for cash, together with the
aggregate cash received by the Company at the time of such conversion
or exchange, plus
(6) To the extent not otherwise included in the Company's
Consolidated Net Income, the net reduction in Investments in
Unrestricted Subsidiaries resulting from the payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
transfers of Properties, in each case to the Company or a Restricted
Subsidiary after the date of this Indenture from any Unrestricted
Subsidiary or from the redesignation of an Unrestricted Subsidiary as
a Restricted Subsidiary (valued in each case as provided in the
definition of Investment), not to exceed in the case of any
Unrestricted Subsidiary the total amount of Investments (other than
Permitted Investments) in such Unrestricted Subsidiary made by the
Company and its Restricted Subsidiaries in such Unrestricted
Subsidiary after the date of this Indenture, plus
(7) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and
its Restricted Subsidiaries may take the following actions so long as (in the
case of clauses (ii), (iii) and (iv) below) no Default or Event of Default
shall have occurred and be continuing:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such declaration date such
declaration complied with the provisions of paragraph (a) above (and
such payment shall be deemed to have been paid on such date of
declaration for purposes of any calculation required by the provisions
of paragraph (a) above);
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the Company
or any Restricted Subsidiary, in exchange for, or out of the aggregate
net cash proceeds of, a substantially concurrent issue and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital Stock
of the Company;
(iii) the purchase, redemption, repayment, defeasance or
other acquisition or retirement for value of any Subordinated
Indebtedness (other than Redeemable Capital Stock) in exchange for or
out of the aggregate net cash proceeds of a substantially concurrent
issue and sale (other than to a Restricted Subsidiary) of shares of
Qualified Capital Stock of the Company; and
(iv) the purchase, redemption, repayment, defeasance or
other acquisition or retirement for value of Subordinated Indebtedness
(other than Redeemable Capital Stock) in exchange for, or out of the
aggregate net cash proceeds of a substantially concurrent
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incurrence (other than to a Restricted Subsidiary) of, Subordinated
Indebtedness of the Company so long as (A) the principal amount of
such new Indebtedness does not exceed the principal amount (or, if
such Subordinated Indebtedness being refinanced provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the date
of determination) of the Subordinated Indebtedness being so purchased,
redeemed, repaid, defeased, acquired or retired, plus the amount of
any premium required to be paid in connection with such refinancing
pursuant to the terms of the Subordinated Indebtedness refinanced or
the amount of any premium reasonably determined by the Company as
necessary to accomplish such refinancing, plus the amount of expenses
of the Company incurred in connection with such refinancing, (B) such
new Subordinated Indebtedness is subordinated to the Securities at
least to the same extent as such Subordinated Indebtedness so
purchased, redeemed, repaid, defeased, acquired or retired, (C) such
new Subordinated Indebtedness has an Average Life to Stated Maturity
that is longer than the Average Life to Stated Maturity of the
Securities and such new Subordinated Indebtedness has a Stated
Maturity for its final scheduled principal payment that is at least 91
days later than the Stated Maturity for the final scheduled principal
payment of the Securities.
The actions described in clauses (i), (ii) and (iii) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be taken in accordance
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (C) of paragraph (a) (provided
that any dividend paid pursuant to clause (i) of this paragraph (b) shall
reduce the amount that would otherwise be available under clause (C) of
paragraph (a) when declared, but not also when subsequently paid pursuant to
such clause (i)), and the actions described in clause (iv) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (C) of paragraph
(a).
(c) In computing Consolidated Net Income of the Company under
paragraph (a) above, (1) the Company shall use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (2) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment would in the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment shall be deemed to have been made in compliance with this
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Net Income of the Company
for any period.
Section 10.11 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, create, incur, issue, assume, guarantee or in any
manner become directly or indirectly liable for the payment of (collectively
"incur") any Indebtedness (including any Acquired Indebtedness), other than
Permitted Indebtedness and Permitted Subsidiary Indebtedness, as the case may
be; provided,
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however, that the Company and its Restricted Subsidiaries that are Subsidiary
Guarantors may incur Indebtedness if (x) the Company's Consolidated Fixed
Charge Coverage Ratio for the four full fiscal quarters immediately preceding
the incurrence of such Indebtedness, taken as one period (at the time of such
incurrence and after giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness was incurred
and the application of such proceeds occurred at the beginning of such
four-quarter period; (ii) the incurrence, repayment or retirement of any other
Indebtedness (including Permitted Indebtedness) by the Company or its
Restricted Subsidiaries since the first day of such four- quarter period
(including any other Indebtedness to be incurred concurrent with the incurrence
of such Indebtedness) as if such Indebtedness was incurred, repaid or retired
at the beginning of such four-quarter period; and (iii) notwithstanding clause
(d) of the definition of Consolidated Net Income, the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any Person acquired or disposed of by the Company or its
Restricted Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period), would have been equal to at least 2.5
to 1.0.
Section 10.12 Limitation on Guarantees of Indebtedness by
Subsidiaries.
(a) The Company shall not permit any Restricted
Subsidiary that is not a Subsidiary Guarantor to guarantee the payment of any
Indebtedness of the Company unless (i) (A) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Subsidiary Guarantee of the Securities by such Restricted
Subsidiary which Subsidiary Guarantee shall be subordinated to Guarantor Senior
Indebtedness (but no other indebtedness) to the same extent that the Notes are
subordinated to Senior Indebtedness and (B) with respect to any guarantee of
Subordinated Indebtedness by a Restricted Subsidiary, any such guarantee shall
be subordinated to such Restricted Subsidiary's Subsidiary Guarantee at least
to the same extent as such Subordinated Indebtedness is subordinated to the
Securities; (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Subsidiary Guarantee until such time as the
obligations guaranteed thereby are paid in full; and (iii) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that such Subsidiary Guarantee has been duly executed and authorized and
constitutes a valid, binding and enforceable obligation of such Restricted
Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy,
insolvency or similar laws (including, without limitation, all laws relating to
fraudulent transfers) and except insofar as enforcement thereof is subject to
general principles of equity; provided that this paragraph (a) shall not be
applicable to any guarantee of any Restricted Subsidiary that (x) existed at
the time such Person became a Restricted Subsidiary of the Company and (y) was
not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary of the Company.
(b) Notwithstanding the foregoing and the other
provisions of this Indenture, any Subsidiary Guarantee incurred by a Restricted
Subsidiary pursuant to this Section 10.12 shall provide by its terms that it
shall be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person that is not an Affiliate of the
Company, of all of the Company's Capital Stock in, or all or substantially all
the Property of, such Restricted Subsidiary
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(which sale, exchange or transfer is not prohibited by this Indenture), (ii)
the merger of such Restricted Subsidiary into the Company or any other
Restricted Subsidiary (provided the surviving Restricted Subsidiary assumes the
Subsidiary Guarantee) or the liquidation and dissolution of such Restricted
Subsidiary (in each case to the extent not prohibited by this Indenture), or
(iii) the release or discharge of the guarantee which resulted in the creation
of such Subsidiary Guarantee of the Securities, except a discharge or release
by or as a result of payment under such guarantee.
Section 10.13 Limitation on Issuances and Sale of Capital
Stock by Restricted Subsidiaries. The Company (a) shall not permit any
Restricted Subsidiary to issue any Preferred Stock (other than to the Company
and/or one or more Wholly Owned Restricted Subsidiaries) and (b) shall not
permit any Person (other than the Company and/or one or more Wholly Owned
Restricted Subsidiaries) to own any Capital Stock of any Restricted Subsidiary;
provided, however, that this Section 10.13 shall not prohibit (1) the issuance
and sale of all, but not less than all, of the issued and outstanding Capital
Stock of any Restricted Subsidiary owned by the Company or any of its
Restricted Subsidiaries in compliance with the other provisions of this
Indenture, or (2) the ownership by directors of director's qualifying shares or
the ownership by foreign nationals of Capital Stock of any Restricted
Subsidiary, to the extent mandated by applicable law.
Section 10.14 Limitation on Liens. The Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly,
create, incur, assume, affirm or suffer to exist or become effective any Lien
of any kind, except for Permitted Liens, on any of its or their respective
Properties (including any intercompany notes), whether now owned or hereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Subordinated Indebtedness, the Securities are secured by a Lien on
such Property or proceeds that is senior in priority to such Lien and (y) in
the case of any other Lien, the Securities are directly secured equally and
ratably with the obligation or liability secured by such Lien.
Section 10.15 Purchase of Securities Upon Change of
Control.
(a) Upon the occurrence of a Change of Control, the
Company shall be obligated to make an offer to purchase (a "Change of Control
Offer") all of the then outstanding Securities, in whole or in part, from the
Holders of such Securities in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") equal to 101% of the aggregate
principal amount of such Securities, plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date (as defined below), in accordance with
the procedures set forth in paragraphs (b), (c) and (d) of this Section. The
Company shall, subject to the provisions described below, be required to
purchase all Securities properly tendered into the Change of Control Offer and
not withdrawn. The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer at the same purchase price, at the same times and otherwise in
substantial compliance with the requirements applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
(b) The Change of Control Offer is required to remain
open for at least 20 Business Days and until the close of business on the fifth
Business Day prior to the Change of Control Purchase Date (as defined below).
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(c) Not later than the 30th day following any Change of
Control, the Company shall give to the Trustee in the manner provided in
Section 15.4 and each Holder of the Securities in the manner provided in
Section 15.5, a notice (the "Change of Control Notice") stating:
(1) that a Change in Control has occurred and
that such Holder has the right to require the Company to
repurchase such Holder's Securities, or portion thereof, at
the Change of Control Purchase Price;
(2) any information regarding such Change of
Control required to be furnished pursuant to Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder;
(3) a purchase date (the "Change of Control
Purchase Date") which shall be on a Business Day and no
earlier than 30 days nor later than 70 days from the date the
Change of Control occurred;
(4) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue
interest;
(5) that unless the Company defaults in
depositing money with the Paying Agent in accordance with the
last paragraph of clause (d) of this Section 10.15, or payment
is otherwise prevented, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control
Purchase Date; and
(6) the instructions a Holder must follow in
order to have its Securities repurchased in accordance with
paragraph (d) of this Section.
(d) Holders electing to have Securities purchased will be
required to surrender such Securities to the Company at the address specified
in the Change of Control Notice at least five Business Days prior to the Change
of Control Purchase Date. Holders will be entitled to withdraw their election
if the Company receives, not later than three Business Days prior to the Change
of Control Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the certificate number(s) and principal
amount of the Securities delivered for purchase by the Holder as to which his
election is to be withdrawn and a statement that such Holder is withdrawing his
election to have such Securities purchased. Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to a Change
of Control Offer, (ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Securities or portions thereof so tendered, and (iii)
deliver or cause to be delivered to the Trustee the Securities so accepted.
The Paying Agent shall promptly mail or deliver to Holders of the Securities so
tendered payment in an amount equal to the purchase price for the Securities,
and the Company will promptly execute and the Trustee will promptly
authenticate and mail or make available for delivery to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
which any such
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Holder did not surrender for purchase. The Company shall announce the results
of a Change of Control Offer on or as soon as practicable after the Change of
Control Purchase Date. For purposes of this Section 10.15, the Trustee will
act as the Paying Agent.
(e) The Company shall comply with Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable, in the event that a Change of
Control occurs and the Company is required to purchase Securities as described
above.
Section 10.16 Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and will not permit any
Restricted Subsidiary to, engage in any Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the
Properties sold or otherwise disposed of pursuant to the Asset Sale and (ii) at
least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, in respect of such Asset Sale consists of cash,
Cash Equivalents or the assumption by the purchaser of liabilities of the
Company (other than liabilities of the Company that are by their terms
subordinated to the Securities) or any Restricted Subsidiary as a result of
which the Company and its remaining Restricted Subsidiaries are no longer
liable.
(b) If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company may either (x) apply the Net Cash Proceeds
thereof to permanently reduce Senior Indebtedness or to permanently reduce
Guarantor Senior Indebtedness or (y) invest all or any part of the Net Cash
Proceeds thereof, within 365 days after such Asset Sale, in Properties which
replace the Properties that were the subject of the Asset Sale or in Properties
that will be used in the business of the Company or its Restricted
Subsidiaries, as the case may be ("Replacement Assets"). The amount of such
Net Cash Proceeds not applied or invested as provided in this paragraph shall
constitute "Excess Proceeds" subject to disposition as provided below.
(c) When the aggregate amount of Excess Proceeds equals
or exceeds $20,000,000 (the "Trigger Date"), the Company shall make an offer to
purchase, from all Holders of the Securities and holders of any then
outstanding Pari Passu Indebtedness required to be repurchased or repaid on a
permanent basis in connection with an Asset Sale, an aggregate principal amount
of Securities and any then outstanding Pari Passu Indebtedness equal to such
Excess Proceeds as follows:
(1) Not later than the 30th day following the
Trigger Date, the Company shall (i) give to the Trustee in the
manner provided in Section 15.4 hereof and each Holder of the
Securities in the manner provided in Section 15.5 hereof, a
notice (a "Purchase Notice") offering to purchase (a "Net
Proceeds Offer") from all Holders of the Securities the
maximum principal amount (expressed as a multiple of $1000) of
Securities that may be purchased out of an amount (the
"Payment Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities and the
denominator of which is the sum of the outstanding principal
amount of the Securities and any then outstanding Pari Passu
Indebtedness (subject to proration in the event such amount
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is less than the aggregate Offered Price (as hereinafter
defined) of all Securities tendered), and (ii) to the extent
required by any then outstanding Pari Passu Indebtedness and
provided there is a permanent reduction in the principal
amount of such Pari Passu Indebtedness, the Company shall make
an offer to purchase such Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Indebtedness
Amount") equal to the excess of the Excess Proceeds over the
Payment Amount.
(2) The offer price for the Securities shall be
payable in cash in an amount equal to 100% of the principal
amount of the Securities tendered pursuant to a Net Proceeds
Offer, plus accrued and unpaid interest, if any, to the date
such Net Proceeds Offer is consummated (the "Offered Price"),
in accordance with paragraph (d) of this Section. To the
extent that the aggregate Offered Price of the Securities
tendered pursuant to a Net Proceeds Offer is less than the
Payment Amount relating thereto or the aggregate amount of the
Pari Passu Indebtedness that is purchased or repaid pursuant
to the Pari Passu Offer is less than the Pari Passu
Indebtedness Amount (such shortfall constituting a "Net
Proceeds Deficiency"), the Company may use such Net Proceeds
Deficiency, or a portion thereof, for general corporate
purposes, subject to the limitations of Section 10.10 hereof.
(3) If the aggregate Offered Price of Securities
validly tendered and not withdrawn by Holders thereof exceeds
the Payment Amount, Securities to be purchased will be
selected on a pro rata basis by the Trustee based on the
principal amount of Securities so tendered. Upon completion
of a Net Proceeds Offer and a Pari Passu Offer, the amount of
Excess Proceeds shall be reset to zero.
(4) The Purchase Notice shall set forth a
purchase date (the "Net Proceeds Payment Date"), which shall
be on a Business Day no earlier than 30 days nor later than 70
days from the Trigger Date. The Purchase Notice shall also
state (i) that a Trigger Date with respect to one or more
Asset Sales has occurred and that such Holder has the right to
require the Company to repurchase such Holders Securities at
the Offered Price, subject to the limitations described in the
forgoing paragraph (3), (ii) any information regarding such
Net Proceeds Offer required to be furnished pursuant to Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder, (iii) that any Security, or portion
thereof, not tendered or accepted for payment will continue to
accrue interest, (iv) that, unless the Company defaults in
depositing money with the Paying Agent in accordance with the
last paragraph of clause (d) of this Section 10.16, or payment
is otherwise prevented, any Security, or portion thereof,
accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Net Proceeds Payment Date,
and (v) the instructions a Holder must follow in order to have
its Securities repurchased in accordance with paragraph (d) of
this Section.
(d) Holders electing to have Securities purchased will be
required to surrender such Securities to the Company at the address specified
in the Purchase Notice at least five Business Days prior to the Net Proceeds
Payment Date. Holders will be entitled to withdraw their election if the
Company receives, not later than three Business Days prior to the Net Proceeds
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the certificate
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number(s) and principal amount of the Securities delivered for purchase by the
Holder as to which his election is to be withdrawn and a statement that such
Holder is withdrawing his election to have such Securities purchased. Holders
whose Securities are purchased only in part will be issued new Securities equal
in principal amount to the unpurchased portion of the Securities surrendered.
On the Net Proceeds Payment Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to a Net Proceeds
Offer in an aggregate principal amount equal to the Payment Amount or such
lesser amount of Securities as has been tendered, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Securities or portions
thereof so tendered in an aggregate principal amount equal to the Payment
Amount or such lesser amount and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted. The Paying Agent shall promptly mail or
deliver to Holders of the Securities so accepted payment in an amount equal to
the purchase price, and the Company shall execute and the Trustee will promptly
authenticate and mail or make available for delivery to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
which any such Holder did not surrender for purchase. Any Securities not so
accepted will be promptly mailed or delivered to the Holder thereof. The
Company shall announce the results of a Net Proceeds Offer on or as soon as
practicable after the Net Proceeds Payment Date. For purposes of this Section
10.16, the Trustee will act as the Paying Agent.
(e) The Company shall not permit any Subsidiary to enter
into or suffer to exist any agreement that would place any restriction of any
kind (other than pursuant to law or regulation) on the ability of the Company
to make a Net Proceeds Offer following any Asset Sale. The Company intends to
comply with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder if applicable, in the event that an Asset Sale occurs
and the Company is required to purchase Securities as described above.
Section 10.17 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of any Property or the rendering of any service) with or for
the benefit of, any Affiliate of the Company (each, other than a Restricted
Subsidiary, being an "Interested Person"), unless (i) such transaction or
series of transactions are on terms that are no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than those that would be
available in a comparable arm's length transaction with unrelated third parties
who are not Interested Persons, (ii) with respect to any one transaction or
series of transactions involving aggregate payments in excess of $10,000,000,
the Company delivers an Officer's Certificate to the Trustee certifying that
such transaction or series of transactions complies with clause (i) above and
such transaction or series of transactions have been approved by a Board
Resolution of the Board of Directors of the Company, and (iii) with respect to
any one transaction or series of transactions involving aggregate payments in
excess of $20,000,000, the Officer's Certificate referred to in clause (ii)
above also certifies that such transaction or series of transactions have been
approved by a majority of the Disinterested Directors (or, in the event there
are no such Disinterested Directors, that the Company has obtained a written
opinion from an independent nationally recognized investment banking firm or
appraisal firm, in either case specializing or having a specialty in the type
and subject matter of the transaction or series of transactions at issue, which
opinion shall be to the effect set forth in clause (i) above or shall state
that such transaction or series of transactions are fair from a financial
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point of view to the Company or such Restricted Subsidiary); provided, however,
that this Section 10.17 will not restrict the Company from (1) paying
reasonable and customary regular compensation and fees to directors of the
Company who are not employees of the Company or any Restricted Subsidiary, (2)
paying dividends on, or making distributions with respect to, shares of Capital
Stock of the Company on a pro rata basis to the extent permitted by Section
10.10 hereof, (3) transactions between or among the Company and/or any of its
Wholly Owned Restricted Subsidiaries, or (4) Restricted Payments permitted by
the provisions of Section 10.10 hereof.
Section 10.18 Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock to the Company or any other
Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (c) make an Investment in the Company or any other
Restricted Subsidiary or (d) transfer any of its Properties to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
(i) pursuant to an agreement in effect or entered into on the date of this
Indenture, (ii) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance or
restriction is not applicable to any other Person, or the Properties of any
other Person, other than the Person, or the Property of the Person, so acquired
or (iii) existing under any agreement that extends, renews, refinances or
places the agreements containing the restrictions in the foregoing clauses (i)
and (ii), provided that the terms and conditions of any such restrictions are
not materially less favorable to the Holders of the Securities than those under
or pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
Section 10.19 Limitation on Conduct of Business. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
engage in the conduct of any business other than the Oil and Gas Business.
Section 10.20 Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.05 through 10.11, Sections 10.13 and 10.14 and
Sections 10.17 through 10.19 hereof if, before or after the time for such
compliance, the Holders of at least a majority in principal amount of the
Outstanding Securities and the Subsidiary Guarantors, by Act of such Holders
and written agreement of the Subsidiary Guarantors, waive such compliance in
such instance 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 10.21 Suspension of Certain Covenants. The
covenants set forth in this Indenture will be applicable to the Company, except
that during any period of time that (i) the ratings assigned to the Securities
by both S&P and ▇▇▇▇▇'▇ (collectively, the "Rating Agencies") are equal to or
higher than BBB- and Baa3, or the equivalents thereof, respectively (the
"Investment Grade Ratings"), except subsequent to a Change of Control of the
Company, and (ii) no Default or Event
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of Default shall have occurred and be continuing, the Company and its
Subsidiaries shall not be subject to the provisions of Sections 10.10, 10.11,
10.16, 10.17 and 10.18 hereof (collectively, the "Suspended Covenants"). In
the event that the Company is not subject to the Suspended Covenants for any
period of time as a result of the preceding sentence and, subsequently, one or
both Rating Agencies withdraws its ratings or downgrades the ratings assigned
to the Securities below the required Investment Grade Ratings, then the Company
and its Subsidiaries will again be subject to the Suspended Covenants and
compliance with the Suspended Covenants with respect to Section 10.10 hereof
made after the time of such withdrawal or downgrade will be calculated in
accordance with the terms of Section 10.10 hereof as if such covenant had been
in effect during the entire period of time from the date of this Indenture.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption. The Securities may be
redeemed, at the election of the Company, as a whole or from time to time in
part, at any time on or after July 15, 2002, upon not less than 30 or more than
60 days' notice to each Holder of Securities to be redeemed, subject to the
conditions and at the Redemption Prices (expressed as percentages of principal
amount) specified in the form of Security, together with accrued and unpaid
interest, if any, to the Redemption Date. In addition, at any time and from
time to time prior to July 15, 2000, the Company may, at its option, redeem
Securities in an amount in the aggregate equal to up to $70,000,000 of the
aggregate principal amount of Securities originally issued under this Indenture
with the net proceeds of one or more Public Equity Offerings by the Company at
a Redemption Price (expressed as a percentage of principal amount) of 108.875%,
plus accrued and unpaid interest, if any, to the applicable Redemption Date
(subject to the right of Holders of Securities on the relevant record date to
receive interest due on the relevant Interest Payment Date); provided, however,
that at least $130,000,000 aggregate principal amount of the Securities must
remain outstanding after each such redemption. In order to effect the
foregoing redemption, the Company must mail notice of redemption under Section
11.5 hereof no later than 60 days after the related Public Equity Offering and
must consummate such redemption within 90 days of the closing of the Public
Equity Offering.
Section 11.2 Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section 11.3 Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 11.1
hereof shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, 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 and of
the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select
the Securities to be redeemed pursuant to Section 11.4 hereof. Any election to
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redeem Securities shall be revocable until the Company gives a notice of
redemption pursuant to Section 11.5 hereof to the Holders of Securities to be
redeemed.
Section 11.4 Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 30 days nor more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, pro rata, by lot or by any
other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal of
Securities; provided, however, that any such partial redemption shall be in
integral multiples of $1000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 11.5 Notice of Redemption. Notice of redemption
shall be given in the manner provided for in Section 15.5 hereof not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date payable as
provided in Section 11.7 hereof) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and that, unless the Company
shall default in the payment of the Redemption Price and any applicable accrued
interest, interest thereon will cease to accrue on and after said date; and
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
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. Failure
to give such notice by mailing to any Holder of Securities or any defect
therein shall not affect the validity of any proceedings for the redemption of
other Securities.
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Section 11.6 Deposit of Redemption Price. On or before
12:00 noon 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 10.3 hereof) an amount of
money sufficient to pay the Redemption Price of, and accrued and unpaid
interest on, all the Securities which are to be redeemed on such Redemption
Date.
Section 11.7 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 (together with accrued and unpaid interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid 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 and unpaid interest, if any, to the Redemption Date; provided, however,
that installments of interest 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
3.9 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
Section 11.8 Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2
hereof (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 such Holder's 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 any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal amount of the Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may, at its option by Board Resolution, at
any time, with respect to the Securities, elect to have either Section 12.2 or
Section 12.3 hereof be applied to all Outstanding Securities upon compliance
with the conditions set forth below in this Article XII.
Section 12.2 Defeasance and Discharge. Upon the Company's
exercise under Section 12.1 hereof of the option applicable to this Section
12.2, the Company shall be deemed to have been discharged from its obligations
with respect to all Outstanding Securities on the date the conditions set forth
in Section 12.4 hereof are satisfied (hereinafter, "legal defeasance"). For
this purpose, such legal defeasance means that the Company and the Subsidiary
Guarantors shall be
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deemed (i) to have paid and discharged their respective obligations under the
Outstanding Securities; provided, however that the Securities shall continue to
be deemed to be "Outstanding" for purposes of Section 12.5 hereof and the other
Sections of this Indenture referred to in clauses (A) and (B) below, and (ii)
to have satisfied all their other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities
to receive, solely from the trust fund described in Section 12.4 hereof and as
more fully set forth in such Section, payments in respect of the principal of
(and premium, if any, on) and interest on such Securities when such payments
are due (or at such time as the Securities would be subject to redemption at
the option of the Company in accordance with this Indenture), (B) the
respective obligations of the Company and the Subsidiary Guarantors under
Sections 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 5.8, 5.14, 6.6, 6.9, 6.10, 10.1, 10.2,
10.3, 10.4, 13.1 (to the extent it relates to the Foregoing Sections and
Article XII hereof), 13.4 and 13.5 hereof, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and (D) the obligations of the
Company and the Subsidiary Guarantors under this Article XII. Subject to
compliance with this Article XII, the Company may exercise its option under
this Section 12.2 notwithstanding the prior exercise of its option under
Section 12.3 hereof with respect to the Securities.
Section 12.3 Covenant Defeasance. Upon the Company's
exercise under Section 12.1 hereof of the option applicable to this Section
12.3, the Company shall be released from its obligations under any covenant
contained in Article VIII and in Sections 10.6 through 10.19 hereof with
respect to the Outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities, 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 covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Sections 5.1(c) or
5.1(d) hereof, but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 12.4 Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 12.2 or Section 12.3 hereof to the Outstanding Securities:
(a) The Company or any Subsidiary Guarantor shall
irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.7 hereof who shall
agree to comply with the provisions of this Article XII 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 such Securities, (A) cash in U.S. Dollars in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an amount,
or (C) a combination thereof, sufficient, in the
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opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on) and
interest on the Outstanding Securities on the Stated Maturity (or Redemption
Date, if applicable) of such principal (and premium, if any) or installment of
interest; provided that the Trustee shall have been irrevocably instructed in
writing by the Company to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities. Before
such a deposit, the Company may give to the Trustee, in accordance with Section
11.03 hereof, a notice of its election to redeem all of the Outstanding
Securities at a future date in accordance with Article XI hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the United
States of America for the timely 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 the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended), as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest
on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(b) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit.
(c) Such legal defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest under this Indenture or
the Trust Indenture Act with respect to any securities of the Company.
(d) Such legal defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a default under any other
material agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which it is bound, as evidenced to the Trustee in an
Officer's Certificate delivered to the Trustee concurrently with such deposit.
(e) In the case of an election under Section 12.2 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this Indenture
there has been a change in the applicable Federal income tax laws; in either
case providing that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such legal defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such legal defeasance had not occurred (it being understood that (x) such
Opinion of Counsel shall also state that such ruling or applicable law is
consistent with the conclusions reached in such Opinion
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of Counsel and (y) the Trustee shall be under no obligation to investigate the
basis of correctness of such ruling).
(f) In the case of an election under Section 12.3 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal defeasance under
Section 12.2 hereof or the covenant defeasance under Section 12.3 (as the case
may be) have been complied with.
Section 12.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to
the provisions of the last paragraph of Section 10.3 hereof, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee-- collectively for purposes of this
Section 12.5, the "Trustee") pursuant to Section 12.4 hereof in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and 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 U.S. Governmental
Obligations deposited pursuant to Section 12.4 hereof 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 XII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 12.4 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or
covenant defeasance, as applicable, in accordance with this Article.
Section 12.6 Reinstatement. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 12.5 hereof by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Subsidiary Guarantors' obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 12.2 or 12.3 hereof, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 12.5 hereof; provided, however, that if the Company
or any Subsidiary Guarantor makes any payment of principal of (or premium, if
any, on) or interest on any
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Security following the reinstatement of its obligations, the Company or such
Subsidiary Guarantor shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE XIII
GUARANTEES
Section 13.1 Unconditional Guarantee. Each Subsidiary
Guarantor hereby unconditionally, jointly and severally, guarantees (each such
guarantee to be referred to herein as a "Subsidiary Guarantee", with all such
guarantees being referred to herein as the "Subsidiary Guarantees") to each
Holder of Securities authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the full and prompt performance of the
Company's obligations under this Indenture and the Securities and that:
(a) the principal of (premium, if any, on) and interest
on the Securities will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal
of and interest on the Securities, if any, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(b) in case of any extension of time of payment or
renewal of any Securities or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise;
subject, however, in the case of clauses (a) and (b) above, to the limitations
set forth in Section 13.4 hereof.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary Guarantors will
be jointly and severally obligated to pay the same immediately. Each
Subsidiary Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Subsidiary Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Subsidiary Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture and in this Subsidiary Guarantee.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Subsidiary Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated
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in full force and effect. Each Subsidiary Guarantor agrees it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between
each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article V hereof for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article V
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Subsidiary Guarantor for the purpose of this
Subsidiary Guarantee.
Section 13.2 Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms.
(a) Except as set forth in Articles VIII and X hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the Company
or another Subsidiary Guarantor or shall prevent any sale or conveyance of the
assets of a Subsidiary Guarantor as an entirety or substantially as an
entirety, to the Company or another Subsidiary Guarantor.
(b) Except as set forth in Articles VIII and X hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into a
corporation or corporations other than the Company or a Subsidiary Guarantor
(whether or not affiliated with the Subsidiary Guarantor), or successive
consolidations or mergers in which a Subsidiary Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the Properties of a Subsidiary Guarantor as an entirety or substantially as
an entirety, to a corporation other than the Company or another Subsidiary
Guarantor (whether or not Affiliated with the Subsidiary Guarantor) authorized
to acquire and operate the same; provided, however, that, subject to Sections
13.2(a) and 13.3 hereof, (i) immediately after such transaction, and giving
effect thereto, no Default or Event of Default shall have occurred as a result
of such transaction and be continuing, (ii) such transaction shall not violate
any of the covenants in Sections 10.1 through 10.19 hereof, and (iii) each
Subsidiary Guarantor hereby covenants and agrees that, upon any such
consolidation, merger, sale or conveyance, such Subsidiary Guarantor's
Subsidiary Guarantee set forth in this Article XIII and in a notation to the
Securities, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by such Subsidiary
Guarantor, shall be expressly assumed (in the event that the Subsidiary
Guarantor is not the surviving corporation in the merger), by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the
Trustee, by such corporation formed by such consolidation, or into which the
Subsidiary Guarantor shall have merged, or by the corporation that shall have
acquired such Property (except to the extent the following Section 13.3 would
result in the release of such Subsidiary Guarantee in which case such surviving
corporation does not have to execute any such supplemental indenture). In the
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor.
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Section 13.3 Release of a Subsidiary Guarantor. Upon the
sale or disposition (by merger or otherwise) of a Subsidiary Guarantor (or all
or substantially all of its Properties) to a Person other than the Company or
another Subsidiary Guarantor and pursuant to a transaction that is otherwise in
compliance with the terms of this Indenture, including but not limited to the
provisions of Section 13.2 hereof, such Subsidiary Guarantor shall be deemed
released from all of its Subsidiary Guarantee and related obligations in this
Indenture; provided, however, that any such termination shall occur only to the
extent that all obligations of such Subsidiary Guarantor under all of its
Guarantees of, and under all of its pledges of assets or other security
interests which secure, other Indebtedness of the Company or any Restricted
Subsidiary shall also terminate upon such sale or other disposition. Each
Subsidiary Guarantor that is designated as an Unrestricted Subsidiary in
accordance with the provisions of this Indenture shall be released from all of
its Subsidiary Guarantee and related obligations set forth in this Indenture
for so long as it remains an Unrestricted Subsidiary. The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
Company Request accompanied by an Officers' Certificate and an Opinion of
Counsel certifying that such sale or other disposition was made by the Company
in accordance with the provisions of this Indenture. Any Subsidiary Guarantor
not so released remains liable for the full amount of principal of (and
premium, if any, on) and interest on the Securities as provided in this Article
XIII.
Section 13.4 Limitation of Subsidiary Guarantor's
Liability. Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any federal or
state law. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities (including, but not limited to, Guarantor Senior Indebtedness) of
such Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary
Guarantee or pursuant to Section 13.5 hereof, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. This
Section 13.4 is for the benefit of the creditors of each Subsidiary Guarantor.
Section 13.5 Contribution. In order to provide for just
and equitable contribution among the Subsidiary Guarantors, the Subsidiary
Guarantors agree, inter se, that in the event any payment or distribution is
made by any Subsidiary Guarantor (a "Funding Guarantor") under its Subsidiary
Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Subsidiary Guarantor (if any) in a pro rata amount based on the Adjusted
Net Assets of each Subsidiary Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Securities or any
other Subsidiary Guarantor's obligations with respect to its Subsidiary
Guarantee.
Section 13.6 Execution and Delivery of Notation of
Subsidiary Guarantee. To evidence its Subsidiary Guarantee set forth in
Section 13.1 hereof, each Subsidiary Guarantor hereby agrees to execute the
notation of Subsidiary Guarantee in substantially the form set forth in Section
2.4 hereof to be endorsed on each Security ordered to be authenticated and
delivered by the Trustee, and each Subsidiary Guarantor agrees that this
Indenture shall be executed on behalf of each
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Subsidiary Guarantor by its President or one of its Vice Presidents and
attested to by one of its Secretaries or Assistant Secretaries. Each
Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 13.1 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Subsidiary Guarantee.
Each such notation of Subsidiary Guarantee shall be signed on behalf of each
Subsidiary Guarantor by two Officers, or an Officer and an Assistant Secretary
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to such notation of Subsidiary Guarantee prior to the
authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture
on behalf of the Subsidiary Guarantors. Such signatures upon the notation of
Subsidiary Guarantee may be by manual or facsimile signature of such officers
and may be imprinted or otherwise reproduced on the Subsidiary Guarantee, and
in case any such officer who shall have signed the notation of Subsidiary
Guarantee shall cease to be such officer before the Security on which such
notation of Subsidiary Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the notation of Subsidiary Guarantee had not ceased to be
such officer of the Subsidiary Guarantor.
Section 13.7 Severability. In case any provision of this
Subsidiary Guarantee shall be invalid, illegal or unenforceable, that portion
of such provision that is not invalid, illegal or unenforceable shall remain in
effect, and the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 13.8 Subsidiary Guarantees Subordinated to
Guarantor Senior Indebtedness. Each Subsidiary Guarantor covenants and agrees,
and each Holder of a Security, by his acceptance of the Subsidiary Guarantees,
likewise covenants and agrees, for the benefit of the holders, from time to
time, of Guarantor Senior Indebtedness, that the payments by such Subsidiary
Guarantor in respect of its Subsidiary Guarantee are subordinated and subject
in right of payment, to the extent and in the manner provided in this Article
XIII, to the prior payment in full of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed or guaranteed; provided, however, that
the Subsidiary Guarantee of such Subsidiary Guarantor, the Indebtedness
represented thereby and the payment of the principal of (and premium, if any,
on) and the interest on the Securities pursuant to such Subsidiary Guarantee in
all respects shall rank pari passu with, or prior to, all existing and future
unsecured indebtedness (including, without limitation, Indebtedness) of such
Subsidiary Guarantor that is subordinated to its Guarantor Senior Indebtedness.
This Article XIII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold, Guarantor Senior Indebtedness, and such provisions are made for the
benefit of the holders of Guarantor Senior Indebtedness, and such holders are
made obligees hereunder and any of them may enforce such provisions.
Section 13.9 Subsidiary Guarantors Not to Make Payments
with Respect to Subsidiary Guarantees in Certain Circumstances.
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(a) No payment or distribution of any Property of any
Subsidiary Guarantor of any kind or character (other than Permitted Guarantor
Junior Securities) may be made by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee upon the happening of any default in respect of the
payment or required prepayment of any of its Guarantor Senior Indebtedness when
the same becomes due and payable (a "Subsidiary Guarantor Payment Default"),
unless and until such Subsidiary Guarantor Payment Default shall have been
cured or waived in writing or shall have ceased to exist or such Guarantor
Senior Indebtedness shall have been paid in full or otherwise discharged, after
which such Subsidiary Guarantor shall resume making any and all required
payments in respect of its Subsidiary Guarantee, including any missed payments.
(b) Upon the happening of any event (other than a
Subsidiary Guarantor Payment Default) the occurrence of which entitles one or
more Persons to accelerate the maturity of any Designated Guarantor Senior
Indebtedness (a "Subsidiary Guarantor Non-payment Default"), and receipt by the
applicable Subsidiary Guarantor and a Responsible Officer of the Trustee, on
behalf of the Trustee, of written notice thereof from one or more of the
holders of such Designated Guarantor Senior Indebtedness or their
representative (a "Subsidiary Guarantor Payment Notice"), then, unless and
until such Subsidiary Guarantor Non-payment Default shall have been cured or
waived in writing or shall have ceased to exist or such Designated Guarantor
Senior Indebtedness is paid in full or otherwise discharged or the holders (or
a representative of the holders) of such Designated Guarantor Senior
Indebtedness give their written approval, no payment or distribution shall be
made by such Subsidiary Guarantor in respect of its Subsidiary Guarantee (other
than Permitted Guarantor Junior Securities); provided, however, that these
provisions will not prevent the making of any payment for more than 179 days
after a Subsidiary Guarantor Payment Notice shall have been given after which,
subject to Section 13.9(a), such Subsidiary Guarantor will resume making any
and all required payments in respect of its Subsidiary Guarantee, including any
missed payments. Notwithstanding any other provision of this Indenture, only
one Subsidiary Guarantor Payment Notice shall be given with respect to any
Subsidiary Guarantee within any 360 consecutive day period. No Subsidiary
Guarantor Non-payment Default with respect to Designated Guarantor Senior
Indebtedness that existed or was continuing on the date of any Subsidiary
Guarantor Payment Notice with respect to the Designated Guarantor Senior
Indebtedness initiating such Subsidiary Guarantor Payment Notice shall be, or
can be, made the basis for the commencement of a subsequent Subsidiary
Guarantor Payment Notice with respect to such Subsidiary Guarantee, whether or
not within a period of 360 consecutive days, unless such default shall have
been cured or waived for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any financial
covenant for a period commencing after the date of commencement of such
Subsidiary Guarantor Payment Notice, that, in either case, would give rise to a
Subsidiary Guarantor Non-payment Default pursuant to any provision under which
a Subsidiary Guarantor Non-payment Default previously existed or was continuing
shall constitute a new Subsidiary Guarantor Non-payment Default for this
purpose; provided that, in the case of a breach of a particular financial
covenant, such Subsidiary Guarantor shall have been in compliance for at least
one full 90 consecutive day period commencing after the date of commencement of
such Subsidiary Guarantor Payment Notice). In no event shall a Subsidiary
Guarantor Payment Notice extend beyond 179 days from the date of its receipt
and there must be a 181 consecutive day period in any 360 consecutive day
period during which no Subsidiary Guarantor Payment Notice is in effect with
respect to such Subsidiary Guarantee.
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(c) In the event that, notwithstanding the foregoing, a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 13.9, then and in such event such payment
shall be paid over and delivered forthwith to the Company. In the event that a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee and a Responsible Officer of the Trustee, on behalf of
the Trustee, shall receive written notice of a Subsidiary Guarantor Payment
Default or a Subsidiary Guarantor Non-payment Default from one or more of the
Holders of Guarantor Senior Indebtedness (or their representative) prior to
making any payment to Holders in respect of the Subsidiary Guarantee and prior
to 11:00 a.m. Eastern Time on the date which is two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose, such payments shall be paid over by the Trustee and delivered
forthwith to the Company. Each Subsidiary Guarantor shall give prompt written
notice to the Trustee of any default under any of its Guarantor Senior
Indebtedness or under any agreement pursuant to which its Guarantor Senior
Indebtedness may have been issued.
Section 13.10 Subsidiary Guarantees Subordinated to Prior
Payment of All Guarantor Senior Indebtedness upon Dissolution, etc. Upon any
distribution of Properties of any Subsidiary Guarantor or payment on behalf of
a Subsidiary Guarantor in the event of any Insolvency or Liquidation Proceeding
with respect to such Subsidiary Guarantor:
(a) the holders of such Subsidiary Guarantor's Guarantor
Senior Indebtedness shall be entitled to receive payment in full of such
Guarantor Senior Indebtedness, or provision must be made for such payment,
before the Holders are entitled to receive any direct or indirect payment or
distribution of any kind or character, whether in cash, property or securities
(other than Permitted Guarantor Junior Securities), on account of any payment
in respect of such Subsidiary Guarantor's Subsidiary Guarantee;
(b) any direct or indirect payment or distribution of
Properties of such Subsidiary Guarantor of any kind or character, whether in
cash, property or securities (other than a payment or distribution in the form
of Permitted Guarantor Junior Securities), by set-off or otherwise, to which
the Holders or the Trustee, on behalf of the Holders, would be entitled except
for the provisions of this Article XIII, shall be paid by the Subsidiary
Guarantor or by any liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of such Guarantor
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Guarantor Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of such
Guarantor Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all such Guarantor Senior Indebtedness,
after giving effect to any concurrent payment or distribution to the holders of
such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 13.10, any direct or indirect payment or
distribution of Properties of such Subsidiary Guarantor of any kind or
character, whether in cash, property or securities (other than a payment or
distribution in the form of Permitted Guarantor Junior Securities), shall be
received by the Trustee or the Holders before all such Guarantor Senior
Indebtedness is paid in full or otherwise discharged, such Properties shall be
received and held in trust for and shall be paid over to the holders of such
Guarantor Senior
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Indebtedness remaining unpaid or their representatives, for application to the
payment of such Guarantor Senior Indebtedness until all such Guarantor Senior
Indebtedness shall have been paid or provided for in full, after giving effect
to any concurrent payment or distribution to the holders of such Guarantor
Senior Indebtedness.
The Company or a Subsidiary Guarantor shall give prompt
written notice to a Responsible Officer of the Trustee, on behalf of the
Trustee, of the occurrence of any Insolvency or Liquidation Proceeding with
respect to such Subsidiary Guarantor.
Section 13.11 Holders to be Subrogated to Rights of Holders
of Guarantor Senior Indebtedness. After the payment in full of all Guarantor
Senior Indebtedness of a Subsidiary Guarantor, the Holders shall be subrogated
(equally and ratably with the holders of all other Indebtedness of such
Subsidiary Guarantor which by its express terms is subordinated to such
Guarantor Senior Indebtedness to substantially the same extent as such
Subsidiary Guarantee is so subordinated and which is entitled to like rights of
subrogation as a result of payments made to the holders of such Guarantor
Senior Indebtedness) to the rights of the holders of such Guarantor Senior
Indebtedness to receive payments or distributions of cash, property and
securities of such Subsidiary Guarantor applicable to such Guarantor Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
and for the purpose of such subrogation no payments or distributions to the
holders of such Guarantor Senior Indebtedness by or on behalf of such
Subsidiary Guarantor or by or on behalf of the Holders by virtue of this
Article XIII which otherwise would have been made to the Holders shall, as
between such Subsidiary Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by such Subsidiary Guarantor to or on account of
such Guarantor Senior Indebtedness, it being understood that the subordination
provisions of this Article XIII are, and are intended solely for, the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of Guarantor Senior Indebtedness, on the other hand.
Section 13.12 Obligations of the Subsidiary Guarantors
Unconditional. Nothing contained in this Article XIII or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors under the Subsidiary Guarantees, or is intended to or shall affect
the relative rights of the Holders and creditors of the Subsidiary Guarantors,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon Default
under this Indenture subject to the rights, if any, under this Article XIII of
the holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of any Subsidiary Guarantor received upon the exercise of any such
remedy. Upon any distribution of Properties of a Subsidiary Guarantor referred
to in this Article XIII, the Trustee, subject to the provisions of Section 6.2
hereof, and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of a trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, or agent or other person
making any distribution to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the related Guarantor Senior Indebtedness and
other indebtedness of such Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XIII.
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Section 13.13 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice. The Trustee shall not at any time be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment to or by the Trustee, unless a Responsible Officer of the Trustee,
on behalf of the Trustee, shall have received at the Corporate Trust Office
written notice thereof from a Subsidiary Guarantor or from one or more holders
of Guarantor Senior Indebtedness or Designated Guarantor Senior Indebtedness,
in the case of a Subsidiary Guarantor Non- payment Default, or from any
representative thereof; and, prior to the receipt of any such written notice,
the Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled
to assume conclusively that no such facts exist. 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 Guarantor Senior Indebtedness or Designated Guarantor
Senior Indebtedness, in the case of a Subsidiary Guarantor Non-payment Default
(or a representative on behalf of such holder), to establish that such notice
has been given by a holder of Guarantor Senior Indebtedness or Designated
Guarantor Senior Indebtedness, in the case of a Subsidiary Guarantor
Non-payment Default, or a representative on behalf of any such holder or
holders.
Section 13.14 Application by Trustee of Money Deposited
with it. Except as provided in Article XIV, any deposit of money by a
Subsidiary Guarantor with the Trustee or any Paying Agent (whether or not in
trust) for any payment in respect of the related Subsidiary Guarantee shall be
subject to the provisions of Sections 13.8, 13.9, 13.10 and 13.11 hereof except
that, if prior to 11:00 a.m. Eastern time on the date which is two Business
Days prior to the date on which by the terms of this Indenture any such money
may become payable for any purpose, the Trustee or, in the case of any such
deposit of money with a Paying Agent, the Paying Agent shall not have received
with respect to such money the notice provided for in Section 13.13 hereof,
then the Trustee or such Paying Agent, as the case may be, shall have full
power and authority to receive such money and to apply the same to the purpose
for which it was received, and shall not be affected by any notice to the
contrary which may be received by it on or after 11:00 a.m., Eastern time, two
Business Days prior to such payment date. 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 Guarantor Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XIII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Guarantor Senior Indebtedness 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 XIII, 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.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Guarantor Senior Indebtedness but shall have only such
obligations to such holders as are expressly set forth in this Article XIII.
Section 13.15 Subordination Rights Not Impaired by Acts or
Omissions of Subsidiary Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior Indebtedness
of a Subsidiary Guarantor to enforce subordination as provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of such Subsidiary Guarantor or by any act or failure to act by any
such
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holder, or by any noncompliance by such Subsidiary Guarantor with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the preceding
paragraph of this Section, the holders of Guarantor Senior Indebtedness may, at
any time and from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the subordination
or other benefits provided in this Article, or the obligations hereunder of the
Holders of the Securities to the holders of Guarantor Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew, exchange, amend, increase
or alter, Guarantor Senior Indebtedness or the term of any instrument
evidencing the same or any agreement under which Guarantor Senior Indebtedness
is outstanding or any liability of any obligor thereon (unless such change,
extension or alteration results in such Indebtedness no longer being Guarantor
Senior Indebtedness as defined in this Indenture); (2) sell, exchange, release
or otherwise deal with any Property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (3) settle or compromise any Guarantor Senior
Indebtedness or any liability of any obligor thereon or release any Person
liable in any manner for the collection of Guarantor Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the Company and any
other Person.
Section 13.16 Holders Authorize Trustee to Effectuate
Subordination of Subsidiary Guarantees. Each Holder, by his acceptance
thereof, authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee as his attorney-in-fact
for such purpose, including, in the event of any Insolvency or Liquidation
Proceeding with respect to any Subsidiary Guarantor, the immediate filing of a
claim for the unpaid balance of his Securities pursuant to the related
Subsidiary Guarantee in the form required in said proceedings and the causing
of said claim to be approved.
Section 13.17 Right of Trustee to Hold Guarantor Senior
Indebtedness. The Trustee shall be entitled to all of the rights set forth in
this Article XIII in respect of any Guarantor Senior Indebtedness at any time
held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 13.18 Article XIII Not to Prevent Events of
Default. The failure to make a payment on account of the Subsidiary Guarantees
by reason of any provision in this Article XIII shall not be construed as
preventing the occurrence of an Event of Default under this Indenture.
Section 13.19 Payment. For purposes of this Article XIII,
a payment with respect to any Subsidiary Guarantee or with respect to principal
of or interest on any Security or any Subsidiary Guarantee shall include,
without limitation, payment of principal of and interest on any Security, any
depositing of funds under Article IV hereof, any payment on account of any
repurchase or redemption of any Security and any payment or recovery on any
claim (whether for rescission or damages and whether based on contract, tort,
duty imposed by law, or any other theory of liability) relating to or arising
out of the offer, sale or purchase of any Security.
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ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1 Securities Subordinate to Senior
Indebtedness. The Company covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article XIV, the Indebtedness
represented by the Securities and the payment of and distributions of or with
respect to the Senior Subordinated Note Obligations are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full in cash or cash equivalents of all amounts payable under
all existing and future Senior Indebtedness.
This Article XIV shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Indebtedness; and such provisions are made for the benefit of
the holders of Senior Indebtedness; and such holder are made obligees hereunder
and they or each of them may enforce such provisions.
Section 14.2 Payment Over of Proceeds upon Dissolution,
etc. In the event of an Insolvency or Liquidation Proceeding with respect to
the Company:
(1) the holders of all Senior Indebtedness shall
be entitled to receive payment in full in cash or cash
equivalents of all Senior Indebtedness before the Holders of
the Securities are entitled to receive any direct or indirect
payment or distribution of any kind or character (excluding
Permitted Junior Securities of the Company) on account of
Senior Subordinated Note Obligations; and
(2) any direct or indirect payment or
distribution of assets of the Company of any kind or
character, whether in cash, property or securities (excluding
Permitted Junior Securities of the Company), by set-off or
otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article shall be paid
by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or cash equivalents
of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the
foregoing provisions of this Section 14.2, the Trustee or the
Holder of any Note shall have received any payment or
distribution of properties or assets of the Company of any
kind or character, whether in cash, property or securities, by
set off or otherwise, in respect of any Senior Subordinated
Note Obligations before all Senior Indebtedness is paid or
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provided for in full, then and in such event such payment or
distribution (excluding Permitted Junior Securities of the
Company) shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after
giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another person upon the terms and
conditions set forth in Article VIII hereof shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Article if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in such Article VIII
hereof to the extent applicable.
Section 14.3 Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 14.2 hereof shall be applicable, upon
the occurrence of a Payment Default, no direct or indirect payment or
distribution of any assets of the Company of any kind or character shall be
made by or on behalf of the Company on account of the Senior Subordinated Note
Obligations or on account of the purchase or redemption or other acquisition of
any Senior Subordinated Note Obligations unless and until such Payment Default
shall have been cured or waived or shall have ceased to exist or such Senior
Indebtedness shall have been discharged or paid in full in cash in cash
equivalents, after which, subject to Section 14.2 hereof (if applicable), the
Company shall resume making any and all required payments in respect of the
Notes and the other Senior Subordinated Note Obligations, including any missed
payments.
(b) Unless Section 14.2 hereof shall be applicable, upon
(1) the occurrence of a Non-payment Default and (2) receipt by the Trustee from
a Senior Representative of written notice (a "Payment Blockage Notice") of such
occurrence stating that such notice is a Payment Blockage Notice pursuant to
this Section 14.3(b) of this Indenture, no payment or distribution of any
assets of the Company of any kind or character shall be made by or on behalf of
the Company on account of any Senior Subordinated Note Obligations or on
account of the purchase or redemption or other acquisition of Senior
Subordinated Note Obligations for a period ("Payment Blockage Period")
commencing on the date of receipt by the Trustee of such notice unless and
until the earlier to occur of the following events (subject to any blockage of
payments that may then be in effect under Section 14.2 hereof or subsection (a)
of this Section 14.3 hereof) (w) 179 days shall have elapsed since receipt of
such written notice by the Trustee, (x) the date, as set forth in a written
notice to the Company or the Trustee from the Senior Representative initiating
such Payment Blockage Period, on which such Non-payment Default shall have been
cured or waived or shall have ceased to exist (provided that no other Payment
Default or Non-Payment Default has occurred and is then continuing after giving
effect to such cure or waiver), (y) such Designated Senior Indebtedness shall
have been discharged or paid in full in cash or cash equivalents or (z) such
Payment Blockage Period
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shall have been terminated by written notice to the Company or the Trustee from
the Senior Representative initiating such Payment Blockage Period, after which,
subject to Sections 14.2 and 14.3(a) hereof (if applicable), the Company shall
promptly resume making any and all required payments in respect of the Senior
Subordinated Note Obligations, including any missed payments. Notwithstanding
any other provision of this Indenture, only one Payment Blockage Period may be
commenced within any 360 consecutive day period. No Non-payment Default with
respect to Designated Senior Indebtedness that existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall
be, or can be, made the basis for the commencement of a second Payment Blockage
Period, whether or not within a period of 360 consecutive days, unless such
default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenant for a period commencing after the date of
commencement of such Payment Blockage Period, that, in either case, would give
rise to a Non-payment Default pursuant to any provision under which a
Non-payment Default previously existed or was continuing shall constitute a new
Non-payment Default for this purpose; provided that, in the case of a breach of
a particular financial covenant, the Company shall have been in compliance for
at least one full 90 consecutive day period commencing after the date of
commencement of such Payment Blockage Period). In no event shall a Payment
Blockage Period extend beyond 179 days from the date of the receipt of the
notice referred to in clause (2) hereof and there must be a 181 consecutive day
period in any 360 consecutive day period during which no Payment Blockage
Period is in effect pursuant to this Section 14.3(b).
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment or
distribution prohibited by the foregoing provisions of this Section 14.3, then
and in such event such payment or distribution shall be paid over and delivered
forthwith to the Senior Representatives or as a court of competent jurisdiction
shall direct for application to the payment of any due and unpaid Senior
Indebtedness, to the extent necessary to pay all such due and unpaid Senior
Indebtedness in cash or cash equivalents, after giving effect to any concurrent
payment to or for the holders of Senior Indebtedness.
Section 14.4 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, notwithstanding any other
provisions of the Indenture, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in
this Article XIV, and no implied covenants or obligations with respect to the
holders of Senior Indebtedness 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 Indebtedness and the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall mistakenly pay over or deliver to
Holders, the Company or any other person moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article XIV or
otherwise.
Section 14.5 Subrogation to Rights of Holders of Senior
Indebtedness. Upon the payment in full of cash or cash equivalents of all
Senior Indebtedness, the Holders of the Securities shall be subrogated (equally
and ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to Senior Indebtedness to substantially the same
extent as the Securities are so subordinated and which is entitled to like
rights of subrogation as a result of the payments made to the holders of Senior
Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the
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Senior Indebtedness until the principal of, premium, if any, and interest on
the Securities shall be paid in full in cash or cash equivalents. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XIV, and no payments over pursuant to the provisions of this Article
XIV to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be payment or
distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XIV shall
have been applied, pursuant to the provisions of this Article XIV, to the
payment of all amounts payable under the Senior Indebtedness of the Company and
such payments or distributions received by such holders of such Senior
Indebtedness shall be in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full in cash or cash
equivalents, then and in such case the Holders shall be entitled to receive the
amount of such excess from the Company upon and to the extent of any return of
such excess by the holders of such Senior Indebtedness.
Section 14.6 Provisions Solely To Define Relative Rights.
The provisions of this Article XIV are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article XIV or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of the Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon a Default or an Event of Default under this Indenture,
subject to the rights, if any, under this Article XIV of the holders of Senior
Indebtedness.
The failure to make a payment on account of any Senior
Subordinated Note Obligations by reason of any provision of this Article XIV
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 14.7 Trustee To Effectuate Subordination. Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XIV and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
Indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness, or any Senior
Representative, may file such a claim on behalf of Holders of the Securities.
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Section 14.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Senior Indebtedness 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 non-compliance 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.
(b) Without limiting the generality of subsection (a) of
this Section 14.8, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article XIV or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding or any
liability of any obligor thereon; (2) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) settle or compromise any Senior Indebtedness or any liability of any
obligor thereon or release any person liable in any manner for the collection
or payment of Senior Indebtedness; and (4) exercise or refrain from exercising
any rights against the Company and any other person; provided, however, that in
no event shall any such actions limit the right of the Holders of the
Securities to take any action to accelerate the maturity of the Notes pursuant
to Article V hereof or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Indenture.
Section 14.9 Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article XIV or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee, on behalf of
the Trustee, shall have received written notice thereof from the Company or a
holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of this Section 14.9, 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 14.9 at least two
Business days prior to the date upon which by the terms hereof any money may
become payable for any purpose under this Indenture (including, without
limitation, the payment of the principal of, premium, if any, or interest on
any Security), then, anything herein contained to the contrary notwithstanding
but without limiting the rights and remedies of the holders of Senior
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee shall have
full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date; nor shall the Trustee be charged with knowledge of the
curing
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of any such default or the elimination of the act or condition preventing any
such payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) Subject to TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a written notice to
a Responsible Officer of the Trustee, on behalf of the Trustee, by a person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent 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
Indebtedness to participate in any payment or distribution pursuant to this
Article XIV, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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 XIV, 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 14.10 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article XIV, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders, shall be entitled to 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, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereof, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XIV.
Section 14.11 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article XIV with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6 hereof.
Section 14.12 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 XIV 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 XIV in addition to or in place of the Trustee; provided, however, that
Section 14.11 hereof shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
Section 14.13 No Suspension of Remedies. Nothing contained
in this Article XIV shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article V hereof or to pursue any rights or remedies hereunder
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or under applicable law, subject to the rights, if any, under this Article XIV
of the holders, from time to time, of Senior Indebtedness.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions. Upon
any application or request by the Company and/or any Subsidiary Guarantor to
the Trustee to take any action under any provision of this Indenture, the
Company and/or such Subsidiary Guarantor, as the case may be, shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture. Each such certificate and each such opinion
shall be in the form of an Officers' Certificate or an Opinion of Counsel, as
applicable, and shall comply with the requirements of 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.
The certificates and opinions provided pursuant to this Section 15.1 and the
statements required by this Section 15.1 shall comply in all respects with TIA
Sections 314(c) and (e).
Section 15.2 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
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representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon an Officers' Certificate of 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
with respect to such matters is 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 15.3 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
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 agents
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 conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) 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 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.
(c) The ownership, 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.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the
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requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
wavier or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(e) 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.
Section 15.4 Notices, etc. to Trustee, Company and
Subsidiary Guarantors. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
or any Subsidiary Guarantor shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing and delivered in person or mailed by certified or
registered mail (return receipt requested) to the Trustee at
its Corporate Trust Office; or
(2) the Company or any Subsidiary Guarantor by
the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided)
if in writing and delivered in person or mailed by certified
or registered mail (return receipt requested) to the Company
addressed to it or a Subsidiary Guarantor, as applicable, at
the Company's principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at any
other address otherwise furnished in writing to the Trustee by
the Company.
Section 15.5 Notice to Holders; Waiver. Where this
Indenture provides for notice of any event to Holders by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives 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 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.
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In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
Section 15.6 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 15.7 Successors and Assigns. All covenants and
agreements in this Indenture by the Company and the Subsidiary Guarantors shall
bind their respective successors and assigns, whether so expressed or not. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 15.8 Separability Clause. In case any provision
in this Indenture or in the Securities or the Subsidiary Guarantees 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,
and a Holder shall have no claim therefore against any party hereto.
Section 15.9 Benefits of Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person
(other than the parties hereto, any Paying Agent, any Securities Registrar and
their successors hereunder, the Holders, the holders of Senior Indebtedness,
the holders of Guarantor Senior Indebtedness and, to the extent set forth in
Section 13.4 hereof, creditors of Subsidiary Guarantors) any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 15.10 Governing Law; Trust Indenture Act Controls.
(a) THIS INDENTURE, THE SUBSIDIARY GUARANTEES AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE
COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR A SUBSIDIARY
GUARANTEE, AND THE COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY AGREE THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
BY ANY SUCH COURT.
(b) This Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 and 318, inclusive, of the
Trust Indenture Act, or conflicts with any provision (an "incorporated
provision") required by or deemed
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to be included in this Indenture by operation of such Trust Indenture Act
sections, such imposed duties or incorporated 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 latter provision shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
Section 15.11 Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, or Stated Maturity or Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities or the Subsidiary Guarantees) payment of
interest or principal (and premium, if any) need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Redemption Date or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
Section 15.12 No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder, by accepting any of the Securities,
waives and releases all such liability to the extent permitted by applicable
law.
Section 15.13 Duplicate Originals. The parties may sign
any number of copies or counterparts of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.
Section 15.14 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ISSUER:
OCEAN ENERGY, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SUBSIDIARY GUARANTOR:
OCEAN ENERGY, INC.,
a Louisiana corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TRUSTEE:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 7/8% Series [A/B] Senior Subordinated Notes due 2007 of Ocean
Energy, Inc. (the "Company")
This Certificate relates to $_____ principal amount of
Securities held in (2)______ book-entry or *______ definitive form by
_____________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Securities held by the
Depositary, a Security or Securities in definitive registered form equal to its
beneficial interest in such Global Securities (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relative to the above captioned Securities and that the
transfer of this Security does not require registration under the Securities
Act (as defined below) because:*
[ ] Such Security is being acquired for the Transferor's own
account without transfer (in satisfaction of Section 2.07(a)(ii)(A) or Section
2.07(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred (i) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A under the
Securities Act or (ii) pursuant to an exemption from registration in accordance
with Rule 904 under the Securities Act (and in the case of clause (ii), based
on an opinion of counsel if the Company so requests and together with a
certification in substantially the form of Exhibit C to the Indenture).
[ ] Such Security is being transferred (i) in accordance with Rule
144 under the Securities Act (an d based on an opinion of counsel if the
Company so requests) or (ii) pursuant to an effective registration statement
under the Securities Act.
[ ] Such Security is being transferred to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (and based on an opinion of
counsel if the Company so requests) together with a certification in
substantially the form of
-----------------------------------
(2) Check appropriate box.
A-1
128
Exhibit B to the Indenture and, to the knowledge of the Transferor, such
institutional accredited investor to whom such Security is to be transferred is
not an "affiliate" (as defined in Rule 144 under the Securities Act) of the
Company.
[ ] Such Security is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel if the Company so requests).
----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------------
Name:
Title:
Address:
Date:
--------------------------
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129
EXHIBIT B
TRANSFEREE LETTER OF REPRESENTATIONS
Ocean Energy Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Madams:
In connection with our proposed purchase of $
million aggregate principal amount of 8 7/8% Senior Subordinated Notes due 2007
(the "Notes") of Ocean Energy, Inc., a Delaware corporation (the "Company"):
1. We understand that the Notes have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
or under any other applicable securities laws, and may not be sold
except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are
purchasing the Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate
of the Company was the owner of such Notes, or any predecessor,
thereto (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement that has been
declared effective by the Securities and Exchange Commission (the
"SEC"), (c) for so long as the Notes are eligible for resale pursuant
to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB to whom
notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales to non-U.S. persons that occur
outside the United States pursuant to Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within
the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 under
the Securities Act (an "Institutional Accredited Investor") that is
acquiring the Notes for its own account or for the account of another
Institutional Accredited Investor for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution
thereof in violation of the regulations of the Securities Act and any
other applicable securities laws or (f) pursuant to any other
available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any
requirement of law that the disposition of our property and the
property of such investor account or accounts be at all times within
our or their control. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Notes is proposed to be made pursuant
to clause (d) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall
provide, among other things, that the transferee is an Institutional
Accredited Investor and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act.
We acknowledge that the Company and the Trustee
B-1
130
reserve the right prior to any offer, sale or other transfer pursuant
to clauses (e) or (f) prior to the Resale Restriction Termination Date
of the Notes to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company
and the Trustee.
2. We are an Institutional Accredited Investor
purchasing for our own account or for the account of another
Institutional Accredited Investor.
3. We are acquiring the Notes purchased by us for our
own account, or for one or more accounts as to each of which we
exercise sole investment discretion, for investment purposes and not
with a view to, or for offer or sale in connection with any
distribution in violation of, the Securities Act. We have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of investment in the Notes,
we invest in securities similar to the Notes in the normal course of
our business and we, and all accounts for which we are acting, are
able to bear the economic risk of investment in the Notes.
4. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
By:
-------------------------------------
(Name of Purchaser)
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
-------------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Taxpayer ID Number:
-----------------------
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131
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_____________, ____
State Street Bank and Trust Company
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed sale of certain 8 7/8% Series [A/B]
Senior Subordinated Notes due 2007 (the "Securities") of Ocean Energy, Inc., a
Delaware corporation (the "Company"), we represent that:
(i) the offer of the Securities was not made to a person
in the United States;
(ii) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States;
(iii) no directed selling efforts have been made by us in
the United States in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S under the U.S. Securities Act of 1933,
as applicable; and
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the U.S. Securities Act of
1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S under the U.S. Securities Act of
1933.
Very truly yours,
----------------------------------------
[Name]
By:
-------------------------------------
Name:
Title:
Address:
C-1