BELLWETHER EXPLORATION COMPANY
SUBSIDIARY GUARANTOR
Named Herein
and
[___________________________________]
Trustee
---------------
INDENTURE
Dated as of __________ ___, 1997
---------------
$100,000,000
____% Senior Subordinated Notes due 2007
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION ......................................................... 2
Section 1.1 Definitions ............................................. 2
Section 1.2 Other Definitions ....................................... 23
Section 1.3 Incorporation by Reference of Trust Indenture Act ....... 23
Section 1.4 Rules of Construction ................................... 24
ARTICLE II - SECURITY FORMS ............................................... 24
Section 2.1 Forms Generally ......................................... 24
Section 2.2 Form of Face of Security ................................ 25
Section 2.3 Form of Reverse of Security ............................. 27
Section 2.4 Form of Notation Relating to Subsidiary Guarantees ...... 31
Section 2.5 Form of Trustee's Certificate of Authentication ......... 33
ARTICLE III - THE SECURITIES .............................................. 33
Section 3.1 Title and Terms ......................................... 33
Section 3.2 Denominations ........................................... 34
Section 3.3 Execution, Authentication, Delivery and Dating .......... 34
Section 3.4 Temporary Securities .................................... 35
Section 3.5 Registration of Transfer and Exchange ................... 36
Section 3.6 Book-Entry Provisions for Global Security ............... 37
Section 3.7 ▇▇▇▇▇▇▇▇▇, Destroyed .................................... 38
Section 3.8 Payment of Interest; Interest Rights Preserved .......... 39
Section 3.9 Persons Deemed Owners ................................... 40
Section 3.10 Cancellation ........................................... 40
Section 3.11 Computation of Interest ................................ 40
ARTICLE IV - SATISFACTION AND DISCHARGE ................................... 40
Section 4.1 Satisfaction and Discharge of Indenture ................. 40
Section 4.2 Application of Trust Money .............................. 42
ARTICLE V - REMEDIES ...................................................... 42
Section 5.1 Events of Default ....................................... 42
Section 5.2 Acceleration of Maturity; Rescission and Annulment ...... 44
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee .................................. 45
Section 5.4 Trustee May File Proofs of Claim ........................ 46
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities .............................................. 47
Section 5.6 Application of Money Collected .......................... 47
Section 5.7 Limitation on Suits ..................................... 48
i
Section 5.8 Unconditional Right of Holders to Receive Principal
Premium and Interest .................................... 48
Section 5.9 Restoration of Rights and Remedies ...................... 48
Section 5.10 Rights and Remedies Cumulative ......................... 49
Section 5.11 Delay or Omission Not Waiver ........................... 49
Section 5.12 Control by Holders ..................................... 49
Section 5.13 Waiver of Past Defaults ................................ 50
Section 5.14 Waiver of Stay ......................................... 50
ARTICLE VI - THE TRUSTEE .................................................. 50
Section 6.1 Duties of Trustee ....................................... 50
Section 6.2 Certain Rights of Trustee ............................... 51
Section 6.3 Trustee Not Responsible for Recitals or Issuance
of Securities ........................................... 52
Section 6.4 May Hold Securities ..................................... 53
Section 6.5 Money Held in Trust ..................................... 53
Section 6.6 Compensation and Reimbursement .......................... 53
Section 6.7 Corporate Trustee Required: Eligibility ................. 54
Section 6.8 Conflicting Interests ................................... 54
Section 6.9 Resignation and Removal; Appointment of Successor ....... 54
Section 6.10 Acceptance of Appointment by Successor ................. 56
Section 6.11 ▇▇▇▇▇▇, Conversion, Consolidation or Succession
to Business ............................................. 56
Section 6.12 Preferential Collection of Claims Against Company ...... 57
Section 6.13 Notice of Defaults ..................................... 57
ARTICLE VII - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY ............................................................. 57
Section 7.1 Holders' Lists; Holder Communications; Disclosures
Respecting Holders ....................................... 57
Section 7.2 Reports by Trustee ...................................... 58
Section 7.3 Reports by Company ...................................... 58
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OF OR LEASE ......................................................... 59
Section 8.1 Company May Consolidate, etc., Only on Certain Terms .... 59
Section 8.2 Successor Substituted ................................... 60
ARTICLE IX - SUPPLEMENTAL INDENTURES ...................................... 61
Section 9.1 Supplemental Indentures Without Consent of Holders ...... 61
Section 9.2 Supplemental Indentures with Consent of Holders ......... 62
Section 9.3 Execution of Supplemental Indentures .................... 63
Section 9.4 Effect of Supplemental Indentures ....................... 63
Section 9.5 Conformity with Trust Indenture Act ..................... 63
Section 9.6 Reference in Securities to Supplemental Indentures ...... 63
Section 9.7 Notice of Supplemental Indentures and Waivers ........... 63
ii
Section 9.8 Effect on Senior Indebtedness ........................... 64
ARTICLE X - COVENANTS ..................................................... 64
Section 10.1 Payment of Principal, Premium, if any, and Interest .... 64
Section 10.2 Maintenance of Office or Agency ........................ 64
Section 10.3 Money for Security Payments to Be Held in Trust ........ 65
Section 10.4 Corporate Existence .................................... 66
Section 10.5 Payment of Taxes and Other Claims ...................... 66
Section 10.6 Maintenance of Properties .............................. 66
Section 10.7 Insurance .............................................. 67
Section 10.8 Statement by Officer as to Default ..................... 67
Section 10.9 Provision of Financial Information ..................... 68
Section 10.10 Limitation on Restricted Payments ..................... 68
Section 10.11 Limitation on Other Senior Subordinated Indebtedness .. 72
Section 10.12 Incurrence of Indebtedness ............................ 72
Section 10.13 Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries .................................................. 72
Section 10.14 Limitation on Issuance and Sale of Capital Stock
by Restricted Subsidiaries ............................... 73
Section 10.15 Limitation on Liens ................................... 74
Section 10.16 Purchase of Securities Upon Change of Control ......... 74
Section 10.17 Disposition of Proceeds of Asset Sales ................ 76
Section 10.18 Limitation on Transactions with Affiliates ............ 79
Section 10.19 Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries ........... 80
Section 10.20 Waiver of Certain Covenants ........................... 80
ARTICLE XI - REDEMPTION OF SECURITIES ..................................... 81
Section 11.1 Right of Redemption .................................... 81
Section 11.2 Applicability of Article ............................... 81
Section 11.3 Election to Redeem; Notice to Trustee .................. 81
Section 11.4 Selection by Trustee of Securities to be Redeemed ...... 81
Section 11.5 Notice of Redemption ................................... 82
Section 11.6 Deposit of Redemption Price ............................ 82
Section 11.7 Securities Payable on Redemption Date .................. 83
Section 11.8 Securities Redeemed in Part ............................ 83
ARTICLE XII - DEFEASANCE AND COVENANT DEFEASANCE .......................... 83
Section 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance ............................................. 83
Section 12.2 Defeasance and Discharge ............................... 84
Section 12.3 Covenant Defeasance .................................... 84
Section 12.4 Conditions to Defeasance or Covenant Defeasance ........ 85
Section 12.5 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions ......... 86
iii
Section 12.6 Reinstatement .......................................... 87
ARTICLE XIII - SUBSIDIARY GUARANTEES ...................................... 87
Section 13.1 Unconditional Guarantee ................................ 87
Section 13.2 Subsidiary Guarantor May Consolidate, etc., on
Certain Terms ............................................ 89
Section 13.3 Release of Subsidiary Guarantors ....................... 89
Section 13.4 Limitation of Subsidiary Guarantors' Liability ......... 90
Section 13.5 Contribution ........................................... 91
Section 13.6 Execution and Delivery of Notations of Subsidiary
Guarantees .............................................. 91
Section 13.7 Severability ........................................... 91
Section 13.8 Subsidiary Guarantees Subordinated to Guarantor Senior
Indebtedness ............................................. 92
Section 13.9 Subsidiary Guarantors Not to Make Payments with
Respect to Subsidiary Guarantees in Certain
Circumstances ............................................ 92
Section 13.10 Subsidiary Guarantees Subordinated to Prior Payment
of All Guarantor Senior Indebtedness Upon Dissolution,
Etc ...................................................... 93
Section 13.11 Holders to be Subrogated to Rights of Holders of
Guarantor Senior Indebtedness ............................ 94
Section 13.12 Obligations of Subsidiary Unconditional ............... 95
Section 13.13 Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice ..................................... 95
Section 13.14 Application by Trustee of Money Deposited with It ..... 96
Section 13.15 Subordination Rights Not Impaired by Acts or Omissions
of Subsidiary Guarantors or Holders of Guarantor
Senior Indebtedness ...................................... 96
Section 13.16 Holders Authorize Trustee to Effectuate Subordination
of Subsidiary Guarantees ................................. 97
Section 13.17 Right of Trustee to Hold Guarantor Senior Indebtedness 97
Section 13.18 Article XIII Not to Prevent Events of Default ......... 97
Section 13.19 Payment ............................................... 97
ARTICLE XIV - SUBORDINATION OF SECURITIES ................................ 98
Section 14.1 Securities Subordinate to Senior Indebtedness ......... 98
Section 14.2 Payment over of Proceeds upon Dissolution, etc ........ 98
Section 14.3 Suspension of Payment When Senior Indebtedness in
Default ................................................ 99
Section 14.4 Payment Permitted If No Default ....................... 100
Section 14.5 Subrogation to Rights of Holders of Senior Indebtedness 101
Section 14.6 Provisions Solely to Define Relative Rights ........... 101
Section 14.7 Trustee to Effectuate Subordination ................... 101
Section 14.8 No Waiver of Subordination Provision .................. 101
Section 14.9 Notice to Trustee ..................................... 102
Section 14.10 Reliance of Judicial Order or Certificate of
Liquidating Agent Bank .................................. 103
Section 14.11 Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights ........................ 103
iv
Section 14.12 Article Applicable to Paying Agents .................. 103
Section 14.13 No Suspension of Remedies ............................ 104
Section 14.14 Trust Money Not Subordinated ......................... 104
ARTICLE XV - MISCELLANEOUS ............................................... 104
Section 15.1 Compliance Certificates and Opinions .................. 104
Section 15.2 Form of Documents Delivered to Trustee ................ 105
Section 15.3 Acts of Holders ....................................... 105
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary
Guarantors ............................................ 106
Section 15.5 Notice to Holders; Waiver ............................. 107
Section 15.6 Effect of Headings and Table of Contents .............. 107
Section 15.7 Successors and Assigns ................................ 108
Section 15.8 Separability Clause ................................... 108
Section 15.9 Benefits of Indenture ................................. 108
Section 15.10 Governing Law; Trust Indenture Act Controls .......... 108
Section 15.11 Legal Holidays ....................................... 109
Section 15.12 No Recourse Against Others ........................... 109
Section 15.13 Duplicate Originals .................................. 109
Section 15.14 No Adverse Interpretation of Other Agreements ........ 109
v
Reconciliation and Tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________ ___, 1997
Trust Indenture Indenture
Act Section Section
ss.310 (a)(1) ............................................... 6.7
(a)(2) ............................................... 6.7
(b) ............................................... 6.7,6.8,6.9
ss.311 (a) ............................................... 6.12
(b) ............................................... 6.12
ss.312 ............................................... 7.1
ss.313 ............................................... 7.2
ss.314 (a) ............................................... 7.3
(a)(4) ............................................... 10.8(i)
(c)(1) ............................................... 15.1
(c)(2) ............................................... 15.1
(e) ............................................... 15.1
ss.315 (a) ............................................... 6.1
(b) ............................................... 6.13
(c) ............................................... 6.1
(d) ............................................... 6.1
ss.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(iv)
ss.317 (a)(1) ............................................... 5.3
(a)(2) ............................................... 5.4
(b) ............................................... 10.3
ss.318 (a) ............................................... 15.10(ii)
vi
THIS INDENTURE, dated as of ______, 1997, is between BELLWETHER EXPLORATION
COMPANY, a Delaware corporation (hereinafter called the "Company"), the
SUBSIDIARY GUARANTORS (as defined hereinafter) and
___________________________________, a _____________ trust company (hereinafter
called the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of ____% Senior
Subordinated Notes due 2007 (herein, as amended or supplemented from time to
time in accordance with the terms hereof, called the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
The Company owns, directly or indirectly, all of the equity ownership of
the outstanding Voting Stock of each initial Subsidiary Guarantor, and each
initial Subsidiary Guarantor is a member of the Company's consolidated group of
companies that are engaged in related businesses. Each initial Subsidiary
Guarantor will derive direct and indirect benefit from the issuance of the
Securities; accordingly, each 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 Guarantors have 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 issued and
executed by the Company and authenticated and delivered by the Trustee as herein
provided, the valid obligations of the Company, to make the Subsidiary
Guarantees, when the notations thereof on the Securities are executed by the
initial Subsidiary Guarantors, the valid obligation of the initial Subsidiary
Guarantors and to make this Indenture a valid agreement of the Company, the
initial Subsidiary Guarantors and the Trustee, in accordance with their
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
(together with the related Subsidiary Guarantees) 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 Guarantees), as
follows:
ARTICLE I
1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section I.1 DEFINITIONS.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an acquisition of Properties from such Person or (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
acquisition or such Person becoming such a Subsidiary). Acquired Indebtedness
shall be deemed to be incurred on the date, of the related acquisition of
Properties from any Person or the date the acquired Person becomes a Subsidiary.
"Act," when used with respect to any Holder, has the meaning specified in
Section 15.3.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date means 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
its Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"Administrative Services Agreement" means the Administrative Services
Agreement, effective as of January 1, 1994 between the Company and Torch and any
other agreements with Torch or its subsidiaries relating to oil and gas
marketing services or contract operations.
"Affiliate" of any specified Person means (i) any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any other Person who is a director or
executive officer of (a) such specified Person or (b) any Person described in
the preceding clause (i). For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"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 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 (i) any Capital Stock
of any Restricted Subsidiary held by the Company or any Restricted Subsidiary,
(ii) all or substantially all of the Properties of the Company or any of its
Restricted Subsidiaries or (iii) any other Properties of the Company or any of
its Restricted Subsidiaries (including Production Payments) other than (a) a
disposition of hydrocarbons or other mineral products (other than Production
Payments), inventory, accounts receivable, cash, Cash Equivalents or other
property
2
in the ordinary course of business, (b) any lease, abandonment, disposition,
relinquishment or farm-out of any oil and gas Property in the ordinary course of
business, (c) the liquidation of Property received in settlement of debts owing
to the Company or any Restricted Subsidiary as a result of foreclosure,
perfection or enforcement of any Lien or debt, which debts were owing to the
Company or any Restricted Subsidiary in the ordinary course of business of the
Company or such Restricted Subsidiary, (d) any transfer of Properties that are
governed by, and made in accordance with, the provisions of Article VIII hereof,
(e) any transfer of Properties to an Unrestricted Subsidiary or other Person, if
permitted under Section 10.10 hereof, (f) any Production Payment created,
incurred, issued, assumed or guaranteed in connection with the financing of, and
within 60 days after, the acquisition of the Property that is subject thereto,
where the holder of such interest has recourse solely to such production or
proceeds of production, subject to the obligation of the grantor or transferor
to operate and maintain, or cause the subject interest to be operated and
maintained, in a reasonably prudent manner or other customary standard or
subject to the obligation of the grantor or transferor to indemnify for
environmental, title or other matters customary in the Oil and Gas Business, or
(g) any transfer, in one or a series of related Transactions, of Properties
having a Fair Market Value of less than $2,000,000.
"Average Life" means, with respect to any Indebtedness, as at any date of
determination, the quotient obtained by dividing (i) the sum of the products of
(a) 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 (b) the amount of each such
principal payment by (ii) the sum of all such principal payments.
"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 Subsidiary, either the board of directors of
such 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 Subsidiary,
a copy of a resolution certified by the Secretary or an Assistant Secretary of
such 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 of [SPECIFY LOCATION OF TRUSTEE] are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests,
3
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 180 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 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) commercial
paper with a maturity of 180 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; (v) overnight bank deposits and bankers' acceptances at any commercial
bank meeting the qualifications specified in clause (ii) above; (vi) deposits
available for withdrawal on demand with any commercial bank not meeting the
qualifications specified in clause (ii) above but which is organized under the
laws of any country in which the Company or any Restricted Subsidiary maintains
an office or is engaged in the Oil and Gas Business, PROVIDED that (A) all such
deposits are required to be made in such accounts in the ordinary course of
business, (B) such deposits do not at any one time exceed $5,000,000 in the
aggregate and (C) no funds so deposited remain on deposit in such bank for more
than 30 days; (vii) deposits available for withdrawal on demand with any
commercial bank not meeting the qualifications specified in clause (ii) above
but which is a lending bank under any of the Company's or any Restricted
Subsidiary's credit facilities, PROVIDED all such deposits do not exceed
$5,000,000 in the aggregate at any one time; and (viii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) through (v).
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
l3d-3 under the Exchange Act), directly or indirectly, of more than 50% of the
total voting power of the outstanding Voting Stock of the Company; (ii) 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
4
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 the stockholders of the Company immediately
prior to such merger or consolidation, and (b) any "person" or "group" (as
defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act) 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; (iii) the Company, either individually or in
conjunction with one or more Restricted Subsidiaries, sells, assigns, conveys,
transfers, leases, or otherwise disposes of, or one or more Restricted
Subsidiaries sells, assigns, conveys, transfers, leases or otherwise disposes
of, 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); (iv)
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 (v) 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 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 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 (i) the
5
sum of Consolidated Net Income, Consolidated Interest Expense, of 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 (a) the amount of deferred revenues that are amortized
during such period and are attributable to reserves that are subject to
Volumetric Production Payments and (b) amounts recorded in accordance with GAAP
as repayments of principal and interest pursuant to Dollar-Denominated
Production Payments, to (ii) the sum of such Consolidated Interest Expense for
such period; PROVIDED, HOWEVER, that (a) the Consolidated Fixed Charge Coverage
Ratio shall be calculated on the assumption that (1) the Indebtedness to be
incurred (and all other Indebtedness incurred after the first day of such period
of four full fiscal quarters referred to in Section 10.12(i) hereof through and
including the date of determination) and (if applicable) the application of the
net proceeds therefrom (and from any other such Indebtedness), including to
refinance other Indebtedness, had been incurred on the first day of such
four-quarter period and, in the case of Acquired Indebtedness, on the assumption
that the related transaction (whether by means of purchase, merger or otherwise)
also had occurred on such date with the appropriate adjustments with respect to
such acquisition being included in such pro forma calculation and (2) any
acquisition or disposition by the Company or any Restricted Subsidiary of any
Properties outside the ordinary course of business, or any repayment of any
principal amount of any Indebtedness of the Company or any Restricted Subsidiary
prior to the Stated Maturity thereof, in either case since the first day of such
period of four full fiscal quarters through and including the date of
determination, had been consummated on such first day of such four-quarter
period, (b) 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 Section 10.12(i) hereof and (1) 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 and (2) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating rate of interest,
shall be computed by applying, at the option of the Company, either the fixed or
floating rate, (c) 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 Section 10.12(i)
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, (d) notwithstanding clauses (b) and (c) 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, (e) in making such calculation, Consolidated
Interest Expense shall exclude interest attributable to Dollar-Denominated
Production Payments, and (f) if after the first day of the period referred to in
clause (i) of this definition the Company has retired any Indebtedness out of
the net cash proceeds of the issue and sale of shares of Qualified Capital
6
Stock of the Company within 30 days of such issuance and sale, Consolidated
Interest Expense shall be calculated on a pro forma basis as if such
Indebtedness had been retired on the first day of such period.
"Consolidated Income Tax Expense" means, for any period, the provision for
federal, state, local and foreign income taxes (including state franchise taxes
accounted for as income taxes in accordance with GAAP) 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,
(i) the sum of (a) 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, (1) any amortization of debt discount,
(2) the net cost under Interest Rate Protection Obligations (including any
amortization of discounts), (3) the interest portion of any deferred payment
obligation constituting indebtedness, (4) all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing and (5) all accrued interest, in each case to the extent attributable
to such period, (b) 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 (to the extent not
accrued in a prior period) or accrued by such other Person during such period
attributable to any such Indebtedness, in each case to the extent attributable
to that period, (c) the aggregate amount of the interest component of
Capitalized Lease Obligations paid (to the extent not accrued in a prior
period), 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 (d) the aggregate amount of dividends paid (to the
extent not accrued in a prior period) or accrued on Redeemable Capital Stock of
the Company and its Restricted Subsidiaries, to the extent such Redeemable
Capital Stock is owned by Persons other than the Company or its Restricted
Subsidiaries and to the extent such dividends are not paid in Common Stock, less
(ii) to the extent included in clause (i), amortization of capitalized debt
issuance costs of the Company and its Restricted Subsidiaries during such
period.
"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 (i) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto),
(ii) net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (iii) 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 or interest on indebtedness actually paid to the Company or any of
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), (iv) net income (or net loss) of any
Person combined with the Company or any of its Restricted Subsidiaries on a
"pooling of
7
interests" basis attributable to any period prior to the date of combination and
(v) 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, orders statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" means, at any date, the consolidated stockholders'
equity of the Company and its Restricted Subsidiaries 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 principal 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 ______________________________________________.
"Credit Facility" means that certain Credit Agreement dated as of
______________, 1997 among the Company, the Credit Facility Agent, and certain
lenders named therein, as the same may be amended, modified, supplemented,
extended, restated, replaced, renewed or refinanced from time to time.
"Credit Facility Agent" means the "Agent" under the Credit Facility,
initially ▇▇▇▇▇▇ Guaranty Trust Company of New York, and thereafter any Person
succeeding to substantially such function and notified to the Company as the new
Credit Facility Agent by the Person then acting in such capacity.
"Default" means any event that is or with the passage of time or giving of
notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.8 hereof.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"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
8
direct or indirect financial interest (other than in 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.
"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.
"Fair Market Value" means the fair market value of a Property (including
shares of Capital Stock) as determined by the Board of Directors of the Company
and evidenced by a Board Resolution 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.
"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
effective on the date of this Indenture.
The term "guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments or documents 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;
PROVIDED HOWEVER, that a guarantee by any Person shall not include a contractual
commitment by one Person to invest in another Person PROVIDED that such
Investment is otherwise permitted by this Indenture. When used as a verb,
"guarantee" shall have a corresponding meaning.
"Guarantor Senior Indebtedness" means the principal of (and premium, if
any, on) and interest on (including interest accruing after the filing of a
petition initiating any proceeding
9
pursuant to any bankruptcy law) and other amounts due on or in correction with
(including any fees, premiums, expenses, including costs of collection, and
indemnities) any Indebtedness of a Subsidiary Guarantor, whether outstanding on
the date of this 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 will be PARI PASSU with or subordinated in right
of payment to its Subsidiary Guarantee. Notwithstanding the foregoing, Guarantor
Senior Indebtedness of a Subsidiary Guarantor shall not include (i) Indebtedness
of such Subsidiary Guarantor evidenced by its Subsidiary Guarantee, (ii)
Indebtedness of such Subsidiary Guarantor that is expressly PARI PASSU with its
Subsidiary Guarantee or is expressly subordinated in right of payment to any
Guarantor Senior Indebtedness of such Subsidiary Guarantor or its Subsidiary
Guarantee, (iii) Indebtedness of such Subsidiary Guarantor to the extent
incurred in violation of Section 10.12 hereof, (iv) Indebtedness of such
Subsidiary Guarantor to the Company or any of the Company's other Subsidiaries
or to any Affiliate of the Company or any Subsidiary of such Affiliate and (v)
Indebtedness which when incurred and without regard to any election under
Section 1111(b) of the Federal Bankruptcy Code is without recourse to such
Subsidiary Guarantor.
"Holder" means a Person in whose name a Security is registered in a
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), and
all liabilities of such Person incurred in connection with any letters of
credit, bankers' acceptances or other similar credit transactions or 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 outstanding on the date of this Indenture or thereafter, 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, (ii) 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, (iii) 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 in the ordinary
course of business, (iv) all Capitalized Lease Obligations of such Person, (v)
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 to be secured by) any Lien
upon Property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person his 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), (vi) all guarantees by such Person of Indebtedness referred to in
this definition (including, with respect to any Production Payment, any
warranties or
10
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), (vii) all Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends and (viii) all obligations of such
Person under or in respect of currency exchange contracts, oil and natural gas
price hedging arrangements and Interest Rate Protection Obligations. 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 (vi) of the first
sentence of this definition, neither Dollar-Dominated Production Payments nor
Volumetric Production Payments shall be deemed to be Indebtedness.
"Indenture" means this instrument as originally executed and as it my from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Insolvency or Liquidation Proceeding" mean, with respect to any Person,
(i) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith, relative to such Person or its creditors, as such, or its assets or
(ii) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
"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,
11
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, (i) 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 and (ii) the fair
market value of Capital Stock retained by the Company or a Restricted Subsidiary
in connection with the sale or issuance of Capital Stock of a Restricted
Subsidiary in accordance with Section 10.14 hereof that, as a result of such
transaction, is no longer a Restricted Subsidiary shall be deemed to be an
"Investment" made at the time of such transaction. "Investments" shall exclude
(a) extensions of trade credit under a joint operating agreement or otherwise in
the ordinary course of business, workers' compensation, utility, lease and
similar deposits and prepaid expenses in the ordinary course of business, (b)
Interest Rate Protection Obligations entered into in the ordinary course of
business or as required by any Permitted Indebtedness or any other Indebtedness
incurred in compliance with Section 10.12 hereof, but only to the extent that
the stated aggregate notional amounts of such Interest Rate Protection
Obligations do not exceed 105% of the aggregate principal amount of such
Indebtedness to which such Interest Rate Protection Obligations relate, (c)
bonds, notes, debentures or other securities received as a result of Asset Sales
permitted under Section 10.17 hereof and (d) endorsements of negotiable
instruments and documents in the ordinary course of business.
"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 Subsidiary" means, at any particular time, any Restricted
Subsidiary that, together with its Subsidiaries, (a) accounted for more than 5%
of the consolidated revenues of the Company and its Restricted Subsidiaries for
the most recently completed fiscal year of the Company, or (b) was the owner of
more than 5% of the consolidated assets of the Company and its Restricted
Subsidiaries at the end of such fiscal year, all as shown in the case of (a) and
(b) on the consolidated financial statements of the Company and its Restricted
Subsidiaries for such fiscal year.
"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as provided therein or
herein, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase
12
or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"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.
"Non-payment Event of Default" means any event (other than a Payment Event
of Default), the occurrence of which (with or without notice or the passage of
time) entitles one or more Persons to accelerate the maturity of any Specified
Senior Indebtedness.
"Non-Recourse Indebtedness" means indebtedness of the Company or any
Restricted Subsidiary incurred in connection with the acquisition by the Company
or such Restricted Subsidiary of any property with respect to which (i) the
holders of such indebtedness agree that they will look solely to the property so
acquired and securing such indebtedness, and neither the Company nor the
Restricted Subsidiary (a) provides direct or indirect credit support, including
any undertaking, agreement or instrument that would constitute indebtedness
(other than the grant of a Lien on such acquired property) or (b) is directly or
indirectly liable for such indebtedness, and (ii) no default with respect to
such indebtedness would cause, or permit (after notice or passage of time or
otherwise), according to the terms thereof, any holder (or any representative of
any such holder) of any other indebtedness of the Company or a Restricted
Subsidiary to declare a default on such other indebtedness or cause the payment,
repurchase, redemption, defeasance or other acquisition or retirement for value
thereof to be accelerated or payable prior to any scheduled principal payment,
scheduled sinking fund payment or maturity.
"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.
13
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President and by the Chief Financial Officer,
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,
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, transportation or marketing of oil,
gas, hydrocarbons 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), including an employee of the
Company (or any Subsidiary Guarantor), 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:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) 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;
(3) Securities, except to the extent provided in Sections 12.2 and 12.3
hereof, with respect to which the Company has effected legal defeasance or
covenant defeasance as provided in Article XII hereof; and
(4) Securities which have been paid pursuant to Section 3.7 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
14
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 Event of Default" means any default in the payment or required
prepayment of principal of (or premium, if any, on) or interest on any Specified
Senior Indebtedness when due (whether at final maturity, upon scheduled
installment, upon acceleration or otherwise).
"Permitted Guarantor Junior Securities" means with respect to any
Subsidiary Guarantor, equity securities or subordinated debt securities of such
Subsidiary Guarantor or any successor obligor with respect to its Guarantor
Senior Indebtedness provided for by a plan of reorganization or readjustment
that, in the case of any such subordinated debt securities, are subordinated in
right of payment to all Guarantor Senior Indebtedness of such Subsidiary
Guarantor or successor obligor that may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Subsidiary
Guarantee of such Subsidiary Guarantor is so subordinated as provided in this
Indenture.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness under the Credit Facility in an aggregate principal amount
at any one time outstanding not to exceed $90,000,000 (less any amounts, applied
to repay or prepay permanently any such Indebtedness in accordance with Section
10.17 hereof), including any guarantee of any such Indebtedness (including by
any Subsidiary) and any fees, premiums, expenses (including costs of
collection), indemnities and other amounts payable in connection with such
indebtedness;
(ii) Indebtedness under the Securities and the Subsidiary Guarantees;
(iii) Indebtedness outstanding on the date of this Indenture (and not
repaid or defeased with the proceeds of the offering of the Securities);
15
(iv) obligations of the Company or a Restricted Subsidiary pursuant to
Interest Rate Protection Obligations, but only to the extent that the stated
aggregate notional amounts of 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 or a 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;
(v) Indebtedness of the Company to a Wholly Owned Restricted Subsidiary and
Indebtedness of a Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary; PROVIDED, HOWEVER, that upon any subsequent issuance or
transfer of any Capital Stock or any other event which results in any such
Wholly Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Company or a Wholly Owned Restricted Subsidiary), such Indebtedness shall be
deemed, in each case, to be incurred and shall be treated as an incurrence for
purposes of Section 10.12 at the time the Wholly Owned Restricted Subsidiary in
question ceased to be a Wholly Owned Restricted Subsidiary;
(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 guaranties and letters of credit supporting such
bid, performance or surety obligations (in each case other than for an
obligation for money borrowed);
(viii) any guarantee of Senior Indebtedness or Guarantor Senior
Indebtedness incurred in compliance with Section 10.12 hereof, by a Restricted
Subsidiary or the Company;
(ix) any renewals, substitutions, financings or replacements (each, for
purposes of this clause, a "refinancing") by the Company or a Restricted
Subsidiary of any Indebtedness incurred pursuant to clause (ii) or (iii) of this
definition, including any successive refinancings by the Company or such
Restricted Subsidiary, 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 or such Restricted Subsidiary as
necessary to accomplish such refinancing, plus the amount of expenses of the
Company or such Restricted Subsidiary incurred in connection with such
refinancing, and (b) in the case of any refinancing of Indebtedness of the
Company that is not Senior Indebtedness, such new Indebtedness is either
16
PARI PASSU with the Securities or subordinated 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 Indebtedness
being refinanced and a final Stated Maturity equal to or later than the final
Stated Maturity of the Indebtedness being refinanced; and
(x) any additional Indebtedness in an aggregate principal amount not in
excess of $15,000,000 at any one time outstanding.
"Permitted Investments" means any of the following: (i) Investments in Cash
Equivalents; (ii) Investments in an amount not to exceed $__________ at any one
time outstanding; (iii) 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 or (b) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its Properties to, the Company or a Restricted Subsidiary; (iv) Investments and
expenditures made in the ordinary course of, and of a nature that is or shall
have become customary in, the Oil and Gas Business as a means of actively
exploiting, exploring for, acquiring, developing, processing, gathering,
marketing or transporting oil and gas through agreements, transactions,
interests or arrangements which permit a Person to share risks or costs, comply
with regulatory requirements regarding local ownership or satisfy other
objectives customarily achieved through the conduct of the Oil and Gas Business
jointly with third parties, including, without limitation (a) ownership
interests in oil and gas properties or gathering systems and (b) Investments and
expenditures in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements,
area of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts, joint venture
agreements, partnership agreements (whether general or limited), subscription
agreements, stock purchase agreements and other similar agreements with third
parties limited liability company agreements (including Unrestricted
Subsidiaries); (v) 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; (vi)
entry into any currency exchange contract in the ordinary course of business;
and (vii) Investments in stock, obligations or securities received in settlement
of debts owing to the Company or a Restricted Subsidiary as a result of
bankruptcy or insolvency proceedings or upon the foreclosure, perfection or
enforcement of any Lien in favor of the Company or a Restricted Subsidiary, in
each case as to debt owing to the Company or a Restricted Subsidiary that arose
in the ordinary course of business of the Company or any such Restricted
Subsidiary.
"Permitted Junior Securities" means any equity securities or subordinated
debt securities of the Company or any successor obligor with respect to the
Senior Indebtedness provided for by a plan of reorganization or readjustment
that, in the case of any such subordinated debt securities, are subordinated in
right of payment to all Senior Indebtedness that may at the time be outstanding
to substantially the same degree as, or to a greater extent than, the Securities
are so subordinated as provided in this Indenture.
17
"Permitted Liens" means any and all of the following:
(i) Liens existing as of the date the Securities are first issued;
(ii) Liens securing the Securities, the Subsidiary Guaranties and other
obligations arising under the Indenture;
(iii) any lien existing on any property of a Person at the time such Person
is merged or consolidated with or into the Company or a Subsidiary Guarantor or
becomes a Restricted Subsidiary that is a Subsidiary Guarantor (and not incurred
in anticipation of such transaction), PROVIDED that such Liens are not extended
to other Property of the Company or the Subsidiary Guarantors;
(iv) any Lien existing on any Property at the time of the acquisition
thereof (and not incurred in anticipation of such transaction), PROVIDED that
such Liens are not extended to other Property of the Company or the Subsidiary
Guarantors;
(v) Liens to secure any permitted extension, renewal, refinancing,
refunding or exchange (or successive extensions, renewals, refinancings,
refundings or exchanges), in whole or in part, of or for any indebtedness
secured by ▇▇▇▇▇ referred to in clauses (i), (ii), (iii) and (iv) above;
PROVIDED, HOWEVER, that (a) such new Lien shall be limited to all or part of the
same Property that secured the original Lien, plus improvements on such property
and (b) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (1) the outstanding principal amount of the
indebtedness secured by such original Lien immediately prior to such extension,
renewal, refinancing, refunding or exchange and (2) an amount necessary to pay
any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement; and
(vi) Liens in favor of the Company.
"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 3.7 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.
"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
18
limitation, all classes and series of 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.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such person other than Redeemable Capital Stock.
"Record Date" means a Regular Record Date or a Special Record Date.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the term 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.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the __________ or __________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the [CORPORATE TRUST 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.
"S&P" means Standard and Poor's Ratings Service, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc., and its successors.
"Securities" has the meaning stated in the first recital of this Indenture
and more
19
particularly means any Securities authenticated and delivered under this
Indenture.
"Senior Indebtedness" means the principal of (and premium, if any, on) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, whether or not
allowable in such proceeding) and other amounts due on or in connection with
(including any fees, premiums, expenses, including costs of collection, and
indemnities) any Indebtedness of the Company, whether outstanding on the date of
this 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 will be PARI PASSU with or expressly subordinated in right of
payment to the Securities. Notwithstanding the foregoing, "Senior Indebtedness"
will not include (i) Indebtedness evidenced by the Securities, (ii) Indebtedness
of the Company that is Pari Passu Indebtedness or is expressly subordinated in
right of payment to any other Indebtedness of the Company, (iii) Indebtedness
that is represented by Redeemable Capital Stock, (iv) Indebtedness of the
Company to the extent incurred in violation of Section 10.12(i) hereof, (v)
Indebtedness of the Company to any Subsidiary of the Company or any other
Affiliate of the Company or any subsidiary of such Affiliate and (vi)
Indebtedness which when incurred and without regard to any election under
Section 1111(b) of the Federal Bankruptcy Code is without recourse to the
Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8 hereof.
"Specified Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (a) for so long as any Senior Indebtedness is outstanding
under the Credit Facility, all Guarantor Senior Indebtedness of such Subsidiary
Guarantor in respect of the Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings or replacements
(each, for purposes of this definition, a "refinancing") thereof by such
Subsidiary Guarantor, including any successive refinancings thereof by such
Subsidiary Guarantor, and (b) any other Guarantor Senior Indebtedness and any
refinancings thereof having a principal amount of at least $10,000,000 as of the
date of determination and PROVIDED that the agreements, indentures or other
instruments evidencing such Guarantor Senior Indebtedness or pursuant to which
such Guarantor Senior Indebtedness was issued specifically designates such
Guarantor Senior Indebtedness as "Specified Guarantor Senior Indebtedness" for
purposes of this Indenture.
For purposes of this definition, a refinancing of any Specified Guarantor
Senior Indebtedness shall be treated as Specified Guarantor Senior Indebtedness
only if the Indebtedness issued in such refinancing ranks or would rank PARI
PASSU with the Specified Guarantor Senior Indebtedness refund and only if the
Indebtedness issued in such refinancing is permitted under Section 10.12(i)
hereof.
"Specified Senior Indebtedness" means (i) all Senior Indebtedness of the
Company in respect of the Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings, or replacements
(each, for purposes of this definition, a
20
"refinancing") thereof by the Company, including any successive refinancings
thereof by the Company and (ii) any other Senior Indebtedness and any
refinancings thereof by the Company having a principal amount of at least
$_______ as of the date of determination and PROVIDED that the agreements,
indentures or other instrument evidencing such Senior Indebtedness or pursuant
to which such Senior Indebtedness was issued specifically designates such Senior
Indebtedness as "Specified Senior Indebtedness" for purposes of this Indenture.
For purposes of this definition, a refinancing of any Specified Senior
Indebtedness shall be treated as a Specified Senior Indebtedness only if the
Indebtedness issued in such refinancing ranks or would rank PARI PASSU with the
Specified Senior Indebtedness refinanced and only if Indebtedness issued in such
refinancing is permitted by Section 10.12(i) 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, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
"Subsidiary Guarantee" has the meaning specified in Section 13.1 hereof.
"Subsidiary Guarantor" means (i) Odyssey Petroleum Company, a Delaware
corporation, (ii) each of the other Restricted Subsidiaries, if any, executing a
supplemental indenture in compliance with the provisions of Section 10.13
hereof, and (iii) any Person that becomes a successor guarantor of the
Securities in compliance with the provisions of Section 13.2 hereof.
"Torch" means Torch Energy Advisors Incorporated, a Delaware corporation.
"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.
21
"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.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination is 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 10.15 hereof); PROVIDED, HOWEVER, that with
respect to clause (a), the Company or a Restricted Subsidiary my 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 (other than Permitted Indebtedness) under
Section 10.12(i) 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 10.15 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
22
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, stork of any other class or
classes shall have, or might have, voting power by reason of the happening of
any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary to the
extent (i) 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 or (ii) such
Restricted Subsidiary is organized in a foreign jurisdiction and is required by
the applicable laws and regulations of such foreign jurisdiction to be partially
owned by the government of such foreign jurisdiction or individual or corporate
citizens of such foreign jurisdiction in order for such Restricted Subsidiary to
transact business in such foreign jurisdiction, PROVIDED that the Company,
directly or indirectly, owns the remaining Capital Stock or ownership interest
in such Restricted Subsidiary and, by contract or otherwise, controls the
management and business of such Restricted Subsidiary and derives the economic
benefits of ownership of such Restricted Subsidiary to substantially the same
extent as if such Restricted Subsidiary were a wholly owned Subsidiary.
Section I.2 OTHER DEFINITIONS.
Defined Term In Section
------------ ----------
"Agent Members".......................................................3.6
"Change of Control Notice"......................................10.16(ii)
"Change of Control Offer"........................................10.16(i)
"Change of Control Purchase Date"................................10.16(i)
"Change of Control Purchase Price"...............................10.16(i)
"Defaulted Interest...................................................3.8
"Excess Proceeds"...............................................10.17(ii)
"Funding Guarantor"..................................................13.5
"Global Security".....................................................2.1
"Net Proceeds Deficiency"......................................10.17(iii)
"Net Proceeds Offer"...........................................10.17(iii)
"Net Proceeds Payment Date"....................................10.17(iii)
"Offered Price"................................................10.17(iii)
"Pari Passu Indebtedness Amount"...............................10.17(iii)
"Pari Passu Offer".............................................10.17(iii)
"Payment Amount"...............................................10.17(iii)
"Payment Blockage Notice"........................................14.3(ii)
"Payment Blockage Period"........................................14.3(ii)
"Physical Securities".................................................2.1
23
"Purchase Notice"..............................................10.17(iii)
"Restricted Payment".............................................10.10(i)
"Security Register"...................................................3.5
"Security Registrar"..................................................3.5
"Subsidiary Guarantor Non-Payment Default".......................13.9(ii)
"Subsidiary Guarantor Payment Default"............................13.9(i)
"Subsidiary Guarantor Payment Notice"............................13.9(ii)
"Surviving Entity..................................................8.1(i)
"Trigger Date..................................................10.17(iii)
"U.S. Government Obligations".....................................12.4(i)
Section I.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 rules and
not otherwise defined herein have the meanings assigned to them therein.
Section I.4 RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(3) the words "herein," "hereof" and "hereunder" and other words of
similar import
24
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(4) the masculine gender includes the feminine and the neuter;
(5) provisions apply to successive events and transactions; and
(6) references to agreements and other instruments include subsequent
amendments and waivers but only to the extent not prohibited by this Indenture.
ARTICLE II
SECURITY FORMS
Section II.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 Trustee's certificate of authentication) offered and sold
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
amounts 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 Trustee's 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
form 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 respective 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, CUSIP or
other numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of the Depositary 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
25
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 Section 10.16
or 10.17 hereof.
Section II.2 FORM OF FACE OF SECURITY.
BELLWETHER EXPLORATION COMPANY
___% Senior Subordinated Note due 2007
No. _____ $_________
CUSIP No. _________
Bellwether Exploration Company, 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 ________, 2007, at the office or agency of the Company referred to
below, and to pay interest thereon, commencing on __________, 1997 and
continuing semiannually thereafter, on _________ and _________ in each year,
from____________, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of ___% 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 on the
Security Register at the close of business on the Regular Record Date for such
interest, which shall be the ________________ or _______________ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for 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 on the
Security Register 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
26
York, 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 on Physical Securities at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
BELLWETHER EXPLORATION COMPANY
[SEAL] By: __________________________
President
Attest:
Secretary
Section II.3 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its ___% Senior Subordinated Notes due 2007 (herein called
the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $100,000,000, which may be
issued under an indenture (herein called the "Indenture") dated as of ______ __,
1997 between the Company, the initial Subsidiary Guarantors named therein and
_____________________ (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
27
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 ____________, 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 ______________ of the years indicated below:
Redemption
Year Price
------------------------- ------
2002 .................... %
2003 .................... %
2004 .................... %
2005 and thereafter ..... 100.00%
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 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.
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 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 mandatory redemption or
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 60 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.
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
28
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 60 days after notice to
comply with any other covenants in the Indenture or the Securities, (v) certain
payment defaults under, and the acceleration prior to the maturity of, certain
Indebtedness of the Company or any Restricted Subsidiary (other than Non-
Recourse Indebtedness) 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 final judgments or orders against the Company or any
Restricted Subsidiary in an aggregate amount of more than $10,000,000 over the
coverage under applicable insurance policies which remain unsatisfied and either
become subject to commencement of enforcement proceedings or remain unstayed for
a period of 60 days and (viii) certain events of bankruptcy, insolvency or
reorganization of the Company or any Material 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 Material
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 or acceleration with
respect to certain Indebtedness, any Event of Default and any consequential
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. No Holder may
pursue any remedy under the Indenture unless the Trustee shall have failed to
act after notice from such Holder of an Event of Default and written request by
Holders of at least 25% in aggregate 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 sue for enforcement of
any overdue payment on a Security by the Holder thereof. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Outstanding Securities my 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 annual and quarterly reports with the Trustee as to
the absence or existence of defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Security and (ii) discharge from
certain restrictive covenants and the
29
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 here for 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
add or release any Subsidiary Guarantor pursuant to the Indenture, 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 interests of any Holder in any material respect.
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 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.
No service charge shall be made for any registration of transfer or
exchange of Securities,
30
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, employee, incorporator, stockholder or Affiliate of
the Company or any Subsidiary Guarantor, as such, past, present or future, shall
not have any personal liability under this Security or the Indenture by reason
of his or its status as such director, officer, employee, incorporator,
stockholder or Affiliate, or any liability for any obligations of the Company or
any Subsidiary Guarantor under the Securities or the Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
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.
Interest on this Security shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
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.
Section II.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 GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and,
31
if any, all additional Subsidiary Guarantors (as defined in the Indenture
referred to in the Security upon which this notation is endorsed and each being
hereinafter referred to as a "Subsidiary Guarantor," which term includes any
additional or successor Subsidiary Guarantor under the Indenture) have, jointly
and severally, unconditionally guaranteed (a) the due and punctual payment of
the principal of (and premium, if any) 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.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities 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 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 Guarantees 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, employee, incorporator or Affiliate as
such, past, present or future, of any Subsidiary Guarantor shall have any
personal liability under its Subsidiary Guarantee by reason of his or its status
as such stockholder, officer, director, employee, incorporator or Affiliate, or
any liability for any obligations of any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
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 Guarantees is endorsed shall have the meanings assigned to them in
such Indenture.
The Subsidiary Guarantees shall be binding upon the Subsidiary Guarantors
and shall
32
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 respecting the
Security upon which the foregoing Subsidiary Guarantees are noted, 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 Guarantees shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which the foregoing
Subsidiary Guarantees are noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized signatories.
ODYSSEY PETROLEUM COMPANY,
_______________________________
___________________________ and
_______________________________
By: ___________________________
Vice President
Section II.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 Securities referred to in the within mentioned
Indenture.
Dated:_____________ ____________________________________,
as Trustee
By: ________________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
Section III.1 TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered
33
under this Indenture for original issue is limited to $100,000,000. The
aggregate principal amount of Securities Outstanding at any one time may not
exceed such amount except as provided in Section 3.7 hereof.
The Securities shall be known and designated as the "___% Senior
Subordinated Notes due 2007," of the Company. Their Stated Maturity shall be
_____________, 2007, and they shall bear interest at the rate of ___% per annum
from ____________, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semiannually on
____________ and ____________ in each year, commencing ___________, 1997, 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; PROVIDED, HOWEVER, that, at the option of the
Company, interest may be paid on Physical Securities by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Security Register.
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 III.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 III.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 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.
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
34
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 after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company and having the notations
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 notations 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 signatory, 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
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its Properties 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 sale, 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 sale,
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 III.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
35
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.
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 the 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 III.5 REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept a register (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.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 10.2 hereof, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount,
each such Security having the notation of Subsidiary Guarantees thereon.
Furthermore, any Holder of a Global Security shall, by acceptance of such
Global Security, be deemed to have agreed that transfers of beneficial interests
in such Global Security may be effected only through a book-entry system
maintained by the Depositary (or its agent), and that ownership of a beneficial
interest in a Global Security shall he required to be reflected in a book entry.
At the option of any Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at the office or agency
of the Company designated pursuant to Section 10.2 hereof. Whenever any
Securities are so surrendered for exchange, the Company
36
shall execute, the Subsidiary Guarantors shall execute notations of Subsidiary
Guarantees on, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees 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, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6 or 11.8 hereof not involving any
transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, register the transfer of or exchange any Physical
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 (ii) to register the transfer
of or exchange of any Physical Security so selected for redemption in whole or
in part, except the unredeemed portion of any Physical Security being redeemed
in part.
Section III.6 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
Each Global Security shall be registered in the name of the Depositary for
such Global Security or the nominee or 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 such
Global Security, and the Depositary may be treated by the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors, 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 Subsidiary Guarantors, or the Trustee or any agent of the
Company, the Subsidiary Guarantors, 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
37
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Security.
Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depositary. Physical Securities shall be transferred
to all beneficial owners in exchange for their beneficial interests in a Global
Security if, and only if, either (i) the Depositary notifies the Company that it
is unwilling or unable to continue as depositary for the Global Security and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Security Registrar has received a request from the Depositary to issue Physical
Securities in lieu of all or a portion of the Global Security (in which case the
Company shall deliver Physical Securities within 30 days of such request).
In connection with the transfer of an entire Global Security to beneficial
owners pursuant to this Section, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary, in exchange for its beneficial interest in the Global
Security, an equal aggregate principal amount of Physical Securities of
authorized denominations.
The 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 III.7 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, the Subsidiary Guarantors 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 notation 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 the tenor and principal amount, having the notation 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.
38
Upon the issuance of any new Security under this Section, the Company may
require 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 continual 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.
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 III.8 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 therein herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(1) The Company my 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 in 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, and 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 is 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
39
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 (ii).
(2) 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 carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section III.9 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 3.8 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 III.10 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 canceled 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 canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All Canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order or in accordance
with the Trustee's usual practice; PROVIDED, HOWEVER, that the Trustee shall not
be required to destroy canceled Securities.
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Section III.11 COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section IV.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 the Trustee under Section 6.6 hereof, execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(1) all Securities theretofore authenticated and delivered (other
than (1) Securities which have been mutilated destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.7 hereof and
(2) Securities for whose payment money or United States governmental
obligations of the type described in clause (i) of the definition of Cash
Equivalents have 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
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity
within one year, or
(3) 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 clause (b)(1), (b)(2) or (b)(3) above, has
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the
41
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;
(2) the Company has paid or caused to be paid all other sums then due and
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, 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 the Trustee pursuant to this Section, the
obligations of the Trustee under Section 4.2 hereof and the last paragraph of
Section 10.3 hereof shall survive.
Section IV.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 he
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 whom payment such money has been deposited
with the Trustee.
ARTICLE V
REMEDIES
Section V.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
occasioned by the provisions of Article XIV or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of the principal of or premium, if any, on any
of the Securities when the same becomes due and payable, whether such payment is
due at Stated
42
Maturity, upon redemption, upon repurchase pursuant to a Change of Control Offer
or a Net Proceeds Offer, upon acceleration or otherwise; or
(2) 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
(3) default in the performance or breach of the provisions of Article VIII
hereof, the failure to make or consummate a Change of Control Offer in
accordance with the provisions of Section 10.16 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
10.17; or
(4) failure of the Company or any Subsidiary Guarantor to comply with any
other term, covenant or agreement contained in the Securities, any Subsidiary
Guarantee or this Indenture (other than a default specified in subparagraph (i),
(ii) or (iii) above) for a period of 60 days after written notice of such
failure stating that it is a "notice of default" hereunder and requiring the
Company or such Subsidiary Guarantor, as the case may be, to remedy the same
shall have been given (a) to the Company by the Trustee or (b) to the Company
and the Trustee by the Holders of at least 25 % in aggregate principal amount of
the Securities then Outstanding; or
(5) the occurrence and continuation beyond any applicable grace period of
any default in the payment when due on final maturity of the principal of (or
premium, if any, on) or interest on any Indebtedness of the Company (other than
the Securities) or any Restricted Subsidiary for money borrowed (other than
Non-Recourse Indebtedness), or any other default resulting in acceleration of
any Indebtedness of the Company or any Restricted Subsidiary for money borrowed
(other than Non-Recourse Indebtedness), PROVIDED that the aggregate principal
amount of such Indebtedness shall exceed $10,000,000; or
(6) 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 or termination of any such Subsidiary Guarantee in
accordance with this Indenture); or
(7) final judgments or orders rendered against the Company or any
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 (a)
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 (b) 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
(8) the entry of a decree or order by a court having jurisdiction in the
premises (a) for relief in respect of the Company or any Material Subsidiary in
an involuntary case or proceeding
43
under the Federal Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (b) adjudging the
Company or any Material Subsidiary bankrupt or insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or composition of the
Company or a Material 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 Material Subsidiary or of a substantial part of its
consolidated assets, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Material 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 bankrupt or insolvent, or the
consent by the Company or any Material 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 Material 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 Material Subsidiary or of any substantial part of its
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 the taking of corporate action
by the Company or any Material Subsidiary in furtherance of any such action.
Section V.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If any Event of Default (other than an Event of Default specified in
Section 5.1(viii) or (ix) 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 aggregate principal amount of the Outstanding
Securities shall, by a notice in writing to the Company, declare all unpaid
principal of, premium, if any, and accrued and unpaid 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;
PROVIDED, HOWEVER, that if any Senior Indebtedness is outstanding pursuant to
the Credit Facility on the date of any such declaration, such acceleration shall
not be effective and such amounts shall not be payable until the earlier of (i)
the day which is five business days after notice of acceleration is given to the
Company and the Credit Facility Agent (unless such Event of Default is cured or
waived prior to such date) and (ii) the date of acceleration of the Senior
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Indebtedness under the Credit Facility. If an Event of Default specified in
Section 5.1(viii) or (ix) hereof occurs and is continuing, then the amounts
described above shall 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 aggregate
principal amount of the Securities Outstanding, by written notice to the
Company, the Subsidiary Guarantors and the Trustee, may rescind and annul such
declaration and its consequences if
(1) 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 have 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 (a) and (b) 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;
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction as certified to the Trustee by the Company; and
(3) 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, if an Event of Default specified in Section
5.1(v) hereof shall have occurred and be continuing, such Event of Default and
any consequential acceleration
45
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), and
written 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 any such acceleration in respect of the
Securities, and so long as such rescission of any such acceleration of the
Securities does not conflict with any judgment or decree as certified to the
Trustee by the Company.
Section V.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) 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
(2) 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
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
money 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
46
the exercise of any power granted herein, or to enforce any other proper remedy.
Section V.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, any Subsidiary Guarantor or any
other obligor upon the Securities, their creditors or the Property of the
Company, any Subsidiary Guarantor or of such other obligor, 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 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,
(1) 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
(2) subject to Article XIV, 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 V.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
47
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section V.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: subject to Article XIV, 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, according to the
amounts due and payable on such Securities for principal (and premium, if any)
and interest, respectively; and
THIRD: subject to Article XIV, the balance, if any, to the Company.
Section V.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
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority or more in
aggregate principal amount of the Outstanding Securities;
48
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 V.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 3.8 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 V.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 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 V.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
3.7 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 V.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 occurring 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
49
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 V.12 CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate 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
(1) such direction shall not be in conflict with any rule of law or with
this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) 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 V.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate 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 (i) a Default or Event of Default on any Security, or (ii) 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 thereby.
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. Any such waiver may (but need not) be given in connection
with a tender offer or exchange offer for the Securities.
Section V.14 WAIVER OF STAY.
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 wherever enacted, now or at any time
hereafter in force, 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) or interest on the Securities as contemplated herein, 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,
50
and covenants 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 VI.1 DUTIES OF TRUSTEE.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, and shall be fully protected in so relying, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; PROVIDED, HOWEVER, the
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(3) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of
Section 6.1(ii);
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.12.
Section VI.2 CERTAIN RIGHTS OF TRUSTEE.
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Subject to the provisions of Section 6.1 hereof:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not he 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 reasonably see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine, during the business hours and upon reasonable notice the books, records
and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee, shall not be responsible, for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted 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; and
52
(9) the Trustee shall not be deemed to have notice or knowledge of any
manner unless a Responsible Officer has actual knowledge thereof or unless
written notice thereof is received by the Trustee at its Corporate Trust Office
and such notice references the Securities generally, the Company or 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 VI.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, the Subsidiary Guarantees or 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 therein. The Trustee shall not
be accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section VI.4 MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company, the Subsidiary Guarantors 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 in the case of the Trustee, 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 VI.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 VI.6 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
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(1) to pay to the Trustee from time to time reasonable compensation for
all services tendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without willful misconduct, negligence or
bad faith on its part, (a) 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 (b) 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 not be
subordinated to the payment of Senior Indebtedness pursuant to Article XIV
hereof and 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 paragraph (viii) or (ix) 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.
Section VI.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 $10,000,000 in the case of the initial Trustee hereunder
and $50,000,000 in the case of any successor Trustee. 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
54
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
with which the effect hereinafter specified in this Article.
Section VI.8 CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of Trust
Indenture Act; PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
Section VI.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) 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.
(2) 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.
(3) The Trustee may be removed at any time by an Act of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(4) If at any time:
(a) 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
(b) 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 ▇▇▇▇▇▇ who has been a bona fide Holder of a Security for at least
six months; or
(c) the Trustee shall become incapable of acting or shall be adjuged
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
55
purpose of rehabilitation, conservation or liquidation, then, in any such
case, (1) the Company, by a Board Resolution, may remove the Trustee, or
(2) subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(5) 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 aggregate 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.
(6) 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 15.5 hereof. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
Section VI.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 money and
other Property 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.
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Section VI.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 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 VI.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).
Section VI.13 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.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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Section VII.1 HOLDERS' LISTS; HOLDER COMMUNICATIONS; DISCLOSURES
RESPECTING HOLDERS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. Neither the Company, any Subsidiary Guarantor nor the Trustee shall
be under any responsibility with regard to the accuracy of such list. If the
Trustee is not the Security Registrar, the Company shall furnish to the Trustee
semi-annually before each Regular Record Date, and at such other times as the
Trustee may reasonably request in writing, a list, in such form as the Trustee
my reasonably request, as of such date of the names and addresses of the Holders
then known to the Company. The Company and the Trustee shall also satisfy any
other requirements imposed upon each of them by TIA Section 312(a).
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities.
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 any of them, shall be held accountable by reason of
the disclosure of any 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, that each of such Persons shall have the protection of
TIA Section 312(c) 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 VII.2 REPORTS BY TRUSTEE.
Within 60 days after ____________of each year commencing with
_____________, 1997, the Trustee shall transmit by mail to the Holders, as their
names and addresses appear in the Security Register, a brief report dated as 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 VII.3 REPORTS BY COMPANY.
The Company shall:
58
(1) file with the Trustee, within 30 days after the Company 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 Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then the Company shall file with the Trustee such information,
documents or reports as required pursuant to Section 10.9 hereof;
(2) 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
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports (without exhibits except to the extent required by TIA Section 313(c))
required to be filed by the Company pursuant to paragraph (i) or (ii) 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 OF OR LEASE
Section VIII.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, lease or otherwise dispose of all or substantially all
of the Properties of the Company and its Restricted Subsidiaries on a
consolidated basis 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:
(1) either (a) if the transaction is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or (b)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the Properties of the Company or its
Restricted Subsidiaries, as the case may be, are sold, assigned, conveyed,
transferred, leased or otherwise disposed of (any such surviving Person or
transferee Person
59
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 under
the Securities and this Indenture, and, in each case, this Indenture shall
remain in full force and effect;
(2) 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;
(3) 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;
(4) except in the case of the consolidation or merger of the Company with
or into a Wholly-owned Restricted Subsidiary or any Restricted Subsidiary with
or into the Company or any Wholly Owned Restricted Subsidiary, immediately
before and immediately 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 10.12(i) hereof;
(5) 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 10.15 hereof;
(6) if the Company is not the continuing obligor under this Indenture,
then each Subsidiary Guarantor, unless it is the Surviving Entity, shall have by
supplemental indenture to this Indenture confirmed that its Subsidiary Guarantee
of the Securities shall apply to the Surviving Entity's obligations under this
Indenture and the Securities; and
(7) the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) shall have delivered to the Trustee, in
form and substance
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reasonably satisfactory to the Trustee, (a) an Officers' Certificate 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, comply with this Indenture and (b) an
Opinion of Counsel stating that the requirements of clause (i) of this paragraph
have been satisfied.
Section VIII.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with or merger of the Company 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
and its Restricted Subsidiaries on a consolidated basis in accordance with
Section 8.1 hereof, the Surviving Entity 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 Surviving Entity 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 (iii) 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 and its Restricted Subsidiaries on a consolidated
basis to any Person otherwise results in a Change of Control.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section IX.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, each of the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee upon Company Request, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) 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
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(3) to add any additional Events of Default; or
(4) 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
(5) 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
(6) to secure the Securities pursuant to the requirements of Section 10.15
hereof or otherwise; or
(7) to add any Restricted Subsidiary as an additional Subsidiary Guarantor
as provided in Section 10.13(i) hereof or to evidence the succession of another
Person to any Subsidiary Guarantor pursuant to Section 13.2(ii) hereof 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 of such Subsidiary Guarantor; or
(8) to release a Subsidiary Guarantor from its Subsidiary Guarantee
pursuant to Section 13.3 hereof; or
(9) to provide for uncertificated Securities in addition to or in place of
certificated Securities; or
(10) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section IX.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities (which consent may, but need not,
be given in connection with any tender offer or exchange offer for the
Securities), by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, each of the Subsidiary
Guarantors, when authorized by a Board Resolution, and the Trustee upon Company
Request, 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:
(1) reduce the principal amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
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(2) reduce the principal of or change the Stated Maturity of the principal
of, or any installment of interest on, any Security or after or waive any of the
provisions with respect to the redemption of the Securities, except as provided
below with respect to Sections 10.16 and 10.17 hereof;
(3) reduce the rate of or change the time for payment of interest,
including Defaulted Interest, on any Security;
(4) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate, principal amount of the then Outstanding Securities and a waiver of
the payment default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of or interest on the Securities;
(7) waive a redemption payment with respect to any Security (other than a
payment required by Section 10.16 or Section 10.17 hereof); or
(8) make any change in Section 5.8, 5.13 or 10.20 hereof or in the
foregoing amendment and waiver provisions; or
(9) modify any provisions of this Indenture relating to the relative
ranking of the Securities or the Subsidiary Guarantees in a manner adverse to
the Holders thereof.
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 IX.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.
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Section IX.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 IX.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 IX.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 IX.7 NOTICE OF SUPPLEMENTAL INDENTURES AND WAIVERS.
Promptly after (i) the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2 hereof or (ii)
a waiver under Section 5.13 or 10.20 hereof becomes effective, 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 or waiver, as the case may be.
Section IX.8 EFFECT ON SENIOR INDEBTEDNESS.
No supplemental indenture shall adversely affect the rights of the holders
of Senior Indebtedness under Article XIV hereof or the holders of Guarantor
Senior Indebtedness under Sections 13.8, 13.9, 13.10, 13.11, 13.13, 13.14,
13.15, 13.16 and 13.19 hereof unless expressly consented to in writing by or on
behalf of such holders (or by any specified percentage of holders of a class of
Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be,
required to consent thereto pursuant to the terms of the agreement or instrument
creating, evidencing or governing such Senior Indebtedness or Guarantor Senior
Indebtedness as the case may be), in which event such supplemental indenture
shall be binding on all successors and assigns of such holders and on all
persons who become holders of such Senior Indebtedness or Guarantor Senior
Indebtedness issued after the date of such amendment or modification.
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ARTICLE X
COVENANTS
Section X.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.
Section X.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in 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 _________, located at
_____________, New York, New York ______, 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
Corporate Trust Office, and the Company hereby appoints the Trustee as its agent
to receive all such presentation, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind any such designation. 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 X.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 11:00 a.m., Eastern time, on 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 sum
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
65
on or before 11:00 a.m., Eastern time, on each due date of the principal of (and
premium, if any, on), or interest on, any Securities, deposit with a Paying
Agent immediately available funds in a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such funds 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:
(1) hold all sums held by it for the payment of the principal of (and
principal, 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;
(2) 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
(3) 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.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (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 herein, which shall not be less than 30 days from
the date of each publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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Section X.4 CORPORATE EXISTENCE.
Except as expressly permitted by Article VIII hereof, Section 10.17 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, rights or
franchises, if 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 X.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, (i) all material 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 (ii) 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.
Section X.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 or such Restricted Subsidiary may be
necessary so that its or its Restricted Subsidiary's business may be properly
and advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in
this Section shall prevent the Company or any Restricted Subsidiary from
discontinuing the maintenance of any of such Properties if such discontinuance
is, in the judgment of the Company or such Restricted Subsidiary, as the case
may be, desirable in the conduct of the business of the Company or such
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 X.7 INSURANCE.
The Company shall at all times keep all of its, and cause its Restricted
Subsidiaries to keep their, Properties which are of an insurable nature inured
with insurers, believed by the
67
Company to be responsible, against loss or damage to the extent that property of
similar character and in a similar location is usually so insured by
corporations similarly situated and owning like Properties.
The Company or any Restricted Subsidiary 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 in a
similar location and owning like Properties, as may be determined by the Board
of Directors of the Company or such Restricted Subsidiary.
Section X.8 STATEMENT BY OFFICER AS TO DEFAULT.
(1) 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 Restricted 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 no Default or Event of Default has
occurred and is continuing (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(i), such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
(2) The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee forthwith upon any of its Officers becoming aware of any
Default or Event of Default an Officers' Certificate specifying such Default or
Event of Default and what action the Company proposes to take with respect
thereto.
Section X.9 PROVISION OF FINANCIAL INFORMATION.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act.
The Company will also file with the Trustee (with exhibits), and provide to
each Holder of Securities (without exhibits), without cost to such Holder,
copies of such reports and documents within 30 days after the date on which the
Company files such reports and documents with the
68
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required and, 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 its cost
copies of such reports and documents (including any exhibits thereto) to any
Holder of Securities, securities analyst or prospective purchaser of any
Securities promptly upon written request given in accordance with Section 15.4
hereof.
Section X.10 LIMITATION ON RESTRICTED PAYMENTS.
(1) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, take the following actions:
(a) declare or pay any dividend or make any distribution on account
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);
(b) 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) or any options, warrants or other
rights to acquire such Capital Stock;
(c) 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 Pari Passu
Indebtedness or Subordinated Indebtedness, except (1) pursuant to a Pari
Passu Offer or out of a Net Proceeds Deficiency pursuant to Section 10.17
hereof or (2) upon a Change of Control to the extent (and only to the
extent) required by the indenture or other agreement or instrument
pursuant to which such Pari Passu Indebtedness or Subordinated
Indebtedness was issued, PROVIDED that the Company is then in compliance
with its obligations under Section 10.16 hereof;
(d) declare or pay any dividend on, or make any distribution to the
holders of, any shares of Capital Stock of any Restricted Subsidiary
(other than payments made pro rata to all holders of such Capital Stock)
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 or the Company); or
(e) make any Investment (other than any Permitted Investment);
(such payments or other actions described in (but not excluded from) clauses (a)
through (e) 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,
69
shall be the amount determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default or Event of Default shall have occurred and be continuing, (2) the
Company could incur $1.00 of additional Indebtedness (excluding Permitted
Indebtedness) in accordance with Section 10.12(i) hereof and (3) 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:
(A) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period beginning on the first day
of the month in which this Indenture is signed 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 Consolidated Net Income
shall be a loss, minus 100% of such loss), plus
(B) 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
(C) 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
(D) 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 options, warrants or rights to
purchase shares of Qualified Capital Stock of the Company, plus
(E) 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, together with the aggregate cash received by
the Company at the time of such conversion or exchange, plus
(F) to the extent not otherwise included in the Company's
Consolidated Net Income, an amount equal to the net reduction in any
investment made by the Company and its Restricted Subsidiaries subsequent
to the date of the Indenture in any Person resulting from (i) payments of
interest on debt, dividends, repayments of loans or advances, or other
transfers or distributions of property, in each case to the Company or any
Restricted Subsidiary from any Person, and in an amount not to exceed the
book value of such investment previously made in such Person that was
treated as Restricted Payments, or (ii) the designation of any
Unrestricted Subsidiary as a Restricted Subsidiary, in each case in an
amount not to exceed the lesser of (x) the book value of such investment
previously made in such Unrestricted Subsidiary that was treated as
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Restricted Payments, and (y) the fair market value of such Unrestricted
Subsidiary, plus
(G) $10,000,000.
(2) Notwithstanding paragraph (i) above, the Company and its Restricted
Subsidiaries may take the following actions so long as (in the case of clauses
(b), (c) and (d) below no Default or Event of Default shall have occurred and be
continuing):
(a) the payment of any dividend on any Capital Stock of the Company
or any Restricted Subsidiary within 60 days after the date of declaration
thereof, if at such declaration date such declaration complied with the
provisions of paragraph (i) 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 (i) above);
(b) 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;
(c) the repurchase, redemption, repayment, defeasance or other
acquisition or retirement for value of any Pari Passu Indebtedness or
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
(d) the purchase, redemption, repayment, defeasance or other
acquisition or retirement for value of Pari Passu Indebtedness or
Subordinated Indebtedness in exchange for, or out of the aggregate net
cash proceeds of, a substantially concurrent incurrence (other than to a
Restricted Subsidiary) of, Pari Passu Indebtedness or Subordinated
Indebtedness so long as (1) the principal amount of such new Indebtedness
does not exceed the principal amount (or, if such Pari Passu Indebtedness
or 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 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
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, (2) such new Indebtedness is PARI PASSU with or subordinated
to the Securities at least to the same extent as such Indebtedness so
purchased, redeemed, repaid, defeased, acquired or retired, (3) such new
Indebtedness has an Average Life to Stated Maturity that is longer than
the Average Life to Stated Maturity
71
of the Securities and such new 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 (a) and (c) of this paragraph (ii) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (ii) but shall reduce the amount that would otherwise be available for
Restricted Payments under clause (3) of paragraph (i) (PROVIDED that any
dividend paid pursuant to clause (a) of this paragraph (ii) shall reduce the
amount that would otherwise be available under clause (3) of paragraph (i) when
declared, but not also when subsequently paid pursuant to such clause (a)), and
the actions described in clauses (b) and (d) of this paragraph (ii) 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 (3) of paragraph (i). Further, the Company or
any Restricted Subsidiary may make a Restricted Payment, if at the time the
Company or any Restricted Subsidiary first incurred a commitment for such
Restricted Payment such Restricted Payment could have been made in accordance
with this Indenture; PROVIDED that all commitments incurred and outstanding
shall be treated as if such commitments were Restricted Payments expended by the
Company or a Restricted Subsidiary at the time the commitments were incurred,
except that commitments incurred and outstanding which are treated as a
Restricted Payment expended by the Company or a Restricted Subsidiary and which
are terminated shall no longer be treated as a Restricted Payment expended by
the Company or a Restricted Subsidiary upon the termination of such commitment
for such purposes; and PROVIDED, FURTHER, that at the time such Restricted
Payment is made no Default or Event of Default shall have occurred and be
continuing and the Company could incur $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) in accordance with Section 10.12(i) hereof.
(3) In computing Consolidated Net Income of the Company under paragraph
(i) above, (a) 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 (b) 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 X.11 LIMITATION ON OTHER SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not (i) incur (as such term is defined in Section
10.12(i) hereof), or permit to remain outstanding, any Indebtedness (including
Acquired Indebtedness and Permitted
72
Indebtedness) other than the Securities, that is subordinated in right of
payment to any Senior Indebtedness, unless such Indebtedness is also PARI PASSU
with, or subordinated in right of payment to, the Securities pursuant to
subordination provisions substantially similar to those contained in this
Indenture, and (ii) permit any Subsidiary Guarantor to incur, or to permit to
remain outstanding, any Indebtedness (including Acquired Indebtedness and
Permitted Indebtedness) other than such Subsidiary Guarantor's Subsidiary
Guaranty, that is subordinated in right of payment to any Guarantor Senior
Indebtedness unless such Indebtedness is also PARI PASSU with, or subordinated
in right of payment to, such Subsidiary Guarantee pursuant to subordination
provisions substantially similar to those contained in this Indenture.
Section X.12 INCURRENCE OF INDEBTEDNESS.
(1) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume, guarantee or otherwise become directly
or indirectly liable for the payment of (collectively, "incur") any Indebtedness
(including any Acquired Indebtedness), other than Permitted Indebtedness, unless
(a) at the time of such event and after giving effect thereto on a PRO FORMA
basis the Company's Consolidated Fixed Charge Coverage Ratio for the four full
fiscal quarters immediately preceding such event, taken as one period, would
have been at least equal to 2.5 to 1.0 and (b) no Default or Event of Default
shall have occurred and be continuing at the time such additional Indebtedness
is incurred or would occur as a consequence of the incurrence of the additional
Indebtedness.
(2) The amount of any guarantees by the Company or any Restricted
Subsidiary of any Indebtedness of the Company or one or more Restricted
Subsidiaries shall not be deemed to be outstanding or incurred for purposes of
this Section 10.12 hereof in addition to the amount of Indebtedness which it
guarantees.
Section X.13 LIMITATION ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED
SUBSIDIARIES.
(1) 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 (a) (1) 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 Securities are subordinated to Senior Indebtedness and
(2) 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; (b) such Restricted
Subsidiary waives and agrees not in any manner whatsoever to 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 (c) such Restricted Subsidiary shall deliver to the Trustee
73
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 (i) 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.
(2) Notwithstanding the foregoing and the other provisions of this
Indenture, any Subsidiary Guarantee incurred by a Restricted Subsidiary pursuant
to this Section 10.13 shall provide by its terms that it shall be automatically
and unconditionally released and discharged upon the terms and conditions set
forth in Section 13.3 hereof.
Section X.14 LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK BY
RESTRICTED SUBSIDIARIES.
The Company (i) shall not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Company or a Restricted Subsidiary) and (ii)
shall not permit any Person (other than the Company or a Restricted Subsidiary)
to own any Capital Stock of any Restricted Subsidiary, except, in each case, for
(a) directors' qualifying shares, (b) Capital Stock of a Restricted Subsidiary
organized in a foreign jurisdiction required to be issued to, or owned by, the
government of such foreign jurisdiction or individual or corporate citizens of
such foreign jurisdiction in order for such Restricted Subsidiary to transact
business in such foreign jurisdiction, (c) a sale of Capital Stock of a
Restricted Subsidiary effected in accordance with Section 10.10 and Section
10.17 hereof, (d) the issuance of Capital Stock by a Restricted Subsidiary to a
Person other than the Company or a Restricted Subsidiary which issuance was
made in accordance with Section 10.10 and Section 10.17 hereof and (e) the
Capital Stock of a Restricted Subsidiary owned by a Person at the time such
Restricted Subsidiary became a Restricted Subsidiary or acquired by such Person
in connection with the formation of the Restricted Subsidiary; PROVIDED,
HOWEVER, that any Capital Stock retained by the Company or a Restricted
Subsidiary in the case of clauses (c), (d) or (e) shall be treated as an
Investment for purposes of Section 10.10, if the amount of such Capital Stock
represents less than a majority of the Voting Stock of such Restricted
Subsidiary.
Section X.15 LIMITATION ON LIENS.
The Company shall not and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind, except for Permitted Liens, upon any of their respective Properties,
whether now owned or acquired after the date of this Indenture, or any income or
profits therefrom to secure any Pari Passu Indebtedness or Subordinated
Indebtedness, unless prior to or contemporaneously therewith the Securities are
directly secured equally and ratably, PROVIDED that (i) if such secured
Indebtedness is Pari Passu
74
Indebtedness, the Lien securing such Pari Passu Indebtedness shall be
subordinate and junior to, or PARI PASSU with, the Lien securing the Securities
and (ii) if such secured Indebtedness is Subordinated Indebtedness, the Lien
securing such Subordinated Indebtedness shall be subordinate and junior to the
Lien securing the Securities at least to the same extent as such Subordinated
Indebtedness is subordinated to the Securities.
Section X.16 PURCHASE OF SECURITIES UPON CHANGE OF CONTROL.
(1) Upon the occurrence of a Change of Control, each Holder of Securities
shall have the right to require the Company to purchase such Holder's
Securities, in whole or in part, in a principal amount that is an integral
multiple of $1,000, pursuant to the offer described in Section 10.16(ii) hereof
(the "Change of Control Offer") at a purchase price (the "Change of Control
Purchase Price") in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, thereon to the date of purchase (the
"Change of Control Purchase Date"). 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.
(2) Within 30 calendar days after the date of any Change of Control, the
Company, or the Trustee at the request and expense of the Company, shall send to
each Holder, in the manner provided in Section 15.5 a notice (the "Change of
Control Notice") prepared by the Company describing the transaction or
transactions that constitute the Change of Control and stating:
(a) that a Change of Control has occurred and a Change of Control
Offer is being made pursuant to this Section 10.16, and that all
Securities that are timely tendered will be accepted for payment;
(b) the Change of Control Purchase Price and the Change of Control
Purchase Date, which date shall be a Business Day no earlier than 30
calendar days nor later than 60 calendar days subsequent to the date such
notice is mailed;
(c) that any Securities or portions thereof not tendered or accepted
for payment will continue to accrue interest;
(d) that, unless the Company defaults in the payment of the Change
of Control Purchase Price with respect thereto, all Securities or portions
thereof accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest from and after the Change of Control Purchase
Date;
(e) that any Holder electing to have any Securities or portions
thereof purchased pursuant to a Change of Control Offer will be required
to surrender such Securities, with the form to elect purchase by the
Company pursuant to this Section 10.16
75
completed, to the Paying Agent at the address specified in the notice,
prior to the close of business on the third Business Day preceding the
Change of Control Purchase Date;
(f) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Change of Control Purchase Date, a
facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Securities delivered for purchase and a statement
that such ▇▇▇▇▇▇ is withdrawing such ▇▇▇▇▇▇'s election to have such
Securities or portions thereof purchased pursuant to the Change of Control
Offer;
(g) that any Holder electing to have Securities purchased pursuant
to the Change of Control offer must specify the principal amount that is
being tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(h) if Physical Securities have been issued pursuant to Section 2.1,
that any Holder of Physical Securities whose Physical Securities are being
purchased only in part will be issued new Physical Securities equal in
principal amount to the unpurchased portion of the Physical Securities
surrendered, which unpurchased portion will be equal in principal amount
to $1,000 or an integral multiple thereof; and
(i) any other information necessary to enable any Holder to tender
Securities and to have such Securities purchased pursuant to this Section
10.16.
(3) On the Change of Control Payment Date, the Company shall, to the
estent lawful, (a) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (b) irrevocably
deposit with the Paying Agent, by 11:00 a.m., Eastern time, on such date, in
immediately available funds, an amount equal to the Change of Control Purchase
Price in respect of all Securities or portions thereof so accepted and (c)
deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly send, in the manner provided in Section 15.5, to each Holder of
Securities or portions thereof so accepted for payment the Change of Control
Purchase Price for such Securities or portions thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. For purposes of this
Section 10.16, the Trustee shall act as the Paying Agent.
(4) Upon surrender and cancellation of a Physical Security that is
purchased in part pursuant to the Change of Control Offer, the Company shall
promptly issue and the Trustee shall authenticate and deliver to the
surrendering Holder of such Physical Security a new Physical Security equal in
principal amount to the unpurchased portion of such surrendered Physical
Security; PROVIDED that each such new Physical Security shall be in a principal
amount of $1,000 or an integral multiple thereof.
(5) The Company shall comply with Rule 14e-1 under the Exchange Act and
any
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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 in this Section 10.16.
To the extent that the provisions of any securities laws or regulations conflict
with the provisions relating to the Change of Control Offer, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 10.16 by virtue
thereof.
(6) Prior to complying with the provisions of this Section 10.16, but in
any event within 30 days following a Change of Control, the Company shall either
repay all outstanding Senior Indebtedness or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Indebtedness to permit
the repurchase of Securities required by this Section 10.16.
Section X.17 DISPOSITION OF PROCEEDS OF ASSET SALES.
(1) The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any Asset Sale unless (a) 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, (b) at least 80% 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 properties used
in the Oil and Gas Business of the Company and its Restricted Subsidiaries and
(c) the Company delivers to the Trustee an Officers' Certificate (which
Officers' Certificate shall be conclusive) certifying that such Asset Sale
complies with clauses (a) and (b) of this Section 10.17(i). The amount (without
duplication) of any Indebtedness (other than Subordinated Indebtedness or Pari
Passu Indebtedness) of the Company or such Restricted Subsidiary that is
expressly assumed by the transferee in such Asset Sale and with respect to which
the Company or such Restricted Subsidiary, as the case may be, is
unconditionally released by the holder of such Indebtedness, shall be deemed to
be cash or Cash Equivalents for purposes of clause (b) and shall also be deemed
to constitute a repayment of, and a permanent reduction in, the amount of such
Indebtedness for purposes of the next following paragraph.
(2) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company or such Restricted Subsidiary may either, no later than 365 days
after such Asset Sale, (a) apply all or any of the Net Cash Proceeds therefrom
to repay Indebtedness (other than Subordinated Indebtedness or Pari Passu
Indebtedness) of the Company or any Restricted Subsidiary, PROVIDED, in each
case, that the related loan commitment (if any) is thereby permanently reduced
by the amount of such Indebtedness so repaid, or (b) invest all or any part of
the Net Cash Proceeds thereof in properties and assets that will be used in the
Oil and Gas Business of the Company or its Restricted Subsidiaries, as the case
may be. The amount of such Net Cash Proceeds not applied or invested as provided
in this paragraph (after the periods specified in this paragraph) shall
constitute "Excess Proceeds."
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(3) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000 (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 such Pari Passu Indebtedness equal to such Excess Proceeds as follows:
(a) Not later than the 30th day following the Trigger Date, the
Company shall (1) 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 $1,000) 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 such Pari Passu Indebtedness (subject to proration in
the event such amount is less than the aggregate Offered Price (as
hereinafter defined) of all Securities tendered), and (2) to the extent
required by any such 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.
(b) The offer price for the Securities shall be payable in cash in
an amount equal to 100% of the aggregate 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 (iv) 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.
(c) 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 aggregate 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.
(d) The Purchase Notice shall set forth a purchase date (the "Net
Proceeds
78
Payment Date"), which shall be on a Business Day no earlier than 30 days
nor later than 60 days from the Trigger Date. The Purchase Notice shall
also state (1) 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 Holder's Securities at the Offered Price subject to the
limitations described in the forgoing paragraph (c), (2) 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, (3) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue interest, (4)
that, unless the Company defaults in depositing money with the Paying
Agent in accordance with the last paragraph of clause (iv) of this Section
10.17, 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 (5) the
instructions a Holder must follow in order to have his Securities
repurchased in accordance with paragraph (iv) of this Section.
(4) Holders electing to have Securities purchased will be required to
surrender such Securities to the Paying Agent at the address specified in the
Purchase Notice prior to the close of business on the third Business Days prior
to the Net Proceeds Payment Date. Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Days prior to the Net Proceeds Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the 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 ▇▇▇▇▇▇ is withdrawing his
election to have such Securities purchased. Holders of Physical Securities whose
Securities are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered, which
unpurchased portion will be equal to $1,000 or an integral multiple thereof.
On the Net Proceeds Payment Date, the Company shall (1) accept for payment
Securities or portions thereof validly 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, (2) irrevocably deposit with the
Paying Agent by 11:00 a.m., Eastern time, immediately available funds 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 (3) deliver or cause to be delivered to the Trustee the Securities so
accepted. The Paying Agent shall promptly send, in the manner provided in
Section 15.5, to Holders of the Securities so accepted payment in an amount
equal to the purchase price, and the Company shall execute and the Trustee shall
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 10.17, the
Trustee will act as the Paying Agent.
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(5) The Company shall not and shall not permit any Restricted 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 right of the
Company to make a Net Proceeds Offer following any Asset Sale. The Company shall
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 in this Section
10.17. To the extent that the provisions of any securities laws or regulations
conflict with the provisions relating to the Net Proceeds offer, the Company
will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 10.17 by virtue
thereof.
Section X.18 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries 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 Property or services) with any
Affiliate of the Company (other than the Company or a Restricted Subsidiary)
unless (i) such transaction or series of related transactions is on terms that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's length
dealings with an unrelated third party, (ii) with respect to a transaction or
series of related transactions involving payments in excess of $1,000,000 in the
aggregate, the Company delivers an Officers' Certificate to the Trustee
certifying that such transaction complies with clause (i) above, (iii) with
respect to a transaction or series of transactions involving payments in excess
of $5,000,000 but not less than $15,000,000 in the aggregate, the Company
delivers an Officers' Certificate to the Trustee certifying that (a) such
transaction or series of related transactions complies with clause (i) above and
(b) such transaction or series of related transactions shall have been approved
by a majority of the Disinterested Directors of the Company and (iv) with
respect to a transaction or series of transactions involving payments of
$15,000,000 or more in the aggregate, the Company delivers an Officers'
Certificate to the Trustee certifying that (a) such transaction or series of
related transactions complies with clause (i) above, (b) such transaction or
series of related transactions shall have been approved by a majority of the
Disinterested Directors of the Company and (c) the Company shall have received
the written opinion of a firm of investment bankers nationally recognized in the
United States that such transaction or series of transactions is fair, from a
financial point of view, to the Company or such Restricted Subsidiary; PROVIDED,
HOWEVER, that the foregoing restriction shall not apply to (1) the provision of
services and payments under the Administrative Services Agreement so long as
such agreement (including any modifications thereof or amendments thereto
entered into on or after the date of this Indenture) has been approved by a
majority of the independent directors of the Board of Directors of the Company,
(2) loans or advances to officers, directors and employees of the Company or any
Restricted Subsidiary made in the ordinary course of business and consistent
with past practices of the Company and its Restricted Subsidiaries in an
aggregate amount not to exceed $3,000,000 outstanding at any one time, (3) the
payment of reasonable and customary regular fees to directors of the Company or
any of its
80
Restricted Subsidiaries who are not employees of the Company or any Affiliate,
(4) the Company's employee compensation and other benefit arrangements or (5)
indemnities of officers and directors of the Company or any Subsidiary
consistent with such Person's bylaws and applicable statutory provisions.
Section X.19 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 (i) 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, (ii) pay any Indebtedness owed to the Company
or any other Restricted Subsidiary, (iii) make an investment in the Company or
any other Restricted Subsidiary, or (iv) transfer any of its Properties to the
Company or any other Restricted Subsidiary except in each instance for such
encumbrances or restrictions pursuant to (a) this Indenture or the Credit
Facility, (b) any other agreement in effect on the date of this Indenture, (c)
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 Properties of the Person, so acquired, (d) customary
restrictions in leases and licenses relating to the Property covered thereby and
entered into in the ordinary course of business or (e) any agreement that
extends, renews, refinances or replaces the agreements containing restrictions
in the foregoing clauses (a) through (d), PROVIDED that in the case of such
agreements referenced in clauses (b) through (d) above, 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, and except with
respect to clause (iv) only, (1) restrictions in the form of Liens which are not
prohibited under Section 10.15 and which contain customary limitations on the
transfer of collateral and (2) customary restrictions contained in asset sale
agreements limiting the transfer of such assets pending the closing of such
sale.
Section X.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 10.5 through 10.12, Sections 10.14
and 10.15 and Sections 10.18 through 10.19 hereof if, before or after the time
for such compliance, the Holders of at least a majority in aggregate 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
81
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section XI.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 __________________, 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.
Section XI.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 XI.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
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 XI.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 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
$1,000.
The Trustee shall promptly notify the Company in writing of the Securities
selected for
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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 XI.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:
(1) the Redemption Date;
(2) the Redemption Price;
(3) 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;
(4) 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
(5) 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.
Section XI.6 DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m., Eastern time, on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3 hereof) an amount of money
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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 XI.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 3.8
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 XI.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 ▇▇▇▇▇▇'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 XII.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, 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.
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Section XII.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 and the Subsidiary Guarantors shall
be deemed to have been discharged from their respective 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 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 and direction 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, 5.8, 5.14, 6.6, 6.9, 6.10,
10.2, 10.3, 13.1 (to the extent it relates to the foregoing Sections and this
Article XII), 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 XII.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.3, the Company and each Subsidiary Guarantor shall
be released from their respective obligations under any covenant contained in
Article VIII, in Sections 10.5 through 10.20 and in Section 13.2 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 and each Subsidiary Guarantor 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
85
omission to comply shall not constitute, a Default or an Event of Default under
Section 5.1(iii), 5.1(iv), 5.1(v) or 5.1(vii) hereof, but, except as specified
above, the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section XII.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:
(1) 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 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
thereof (or Redemption Date, if applicable), 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 payment with respect
to the Securities. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 11.3 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 (1) direct obligations
of the United States of America for the timely payment of which its full faith
and credit is pledged or (2) 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 amount 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.
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(2) No Default or Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1 (viii) and 5.1(ix) are concerned, at any time during the period
ending on the 91st day after the date of such deposit.
(3) 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 or any Subsidiary
Guarantor.
(4) 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 Officers'
Certificate delivered to the Trustee concurrently with such deposit.
(5) 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 (a) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (b) since the date of this 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 (1) such Opinion of Counsel shall also state that such ruling or
applicable law is consistent with the conclusions reached in such Opinion of
Counsel and (2) the Trustee shall be under no obligation to investigate the
basis of correctness of such ruling).
(6) 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 or the Outstanding Securities will not recognize income 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.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together, state 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 XII.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
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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 XII.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 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
SUBSIDIARY GUARANTEES
Section XIII.1 UNCONDITIONAL GUARANTEE.
Each Subsidiary Guarantor hereby unconditionally, jointly and severally,
guarantees
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(each such guarantee being referred to herein as this "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:
(1) the principal of (and 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
(2) 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 (i) and (ii) 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, to the extent permitted by
law 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 waves, to the extent permitted by law, diligence,
presentment, demand of payment, filing of claim 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 in full force and
effect. Each Subsidiary Guarantor agrees it shall not be entitled to enforce 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,
(a) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article V hereof for the purposes of this Subsidiary Guarantee,
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notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) 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 XIII.2 SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(1) Except as set forth in Article VIII 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, conveyance or other disposition of all or
substantially all the Properties of a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor.
(2) Except as set forth in Article VIII 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 Person other than the Company or
another 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, conveyance or other disposition of all or substantially all
the Properties of a Subsidiary Guarantor to a Person 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
(a) 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, (b) such transaction shall not violate any of the covenants of
Sections 10.1 through 10.19 hereof and (c) each Subsidiary Guarantor hereby
covenants and agrees that, upon any such consolidation, merger, sale, conveyance
or other disposition, 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 a merger), by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by such Person formed by such
consolidation, or into which the Subsidiary Guarantor shall have merged, or by
the Person 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 Person or transferee of such Property shall not
have to execute any such supplemental indenture and shall not have to assume
such Subsidiary Guarantor's Subsidiary Guarantee). In the case of any such
consolidation, merger, sale, conveyance or other disposition and upon the
assumption by the successor Person, 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 Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as the initial Subsidiary Guarantor.
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Section XIII.3 RELEASE OF SUBSIDIARY GUARANTORS.
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 or pursuant to Article VIII
hereof, such Subsidiary Guarantor shall be deemed released from its Subsidiary
Guarantee and all related obligations under 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 other Restricted Subsidiary shall also terminate upon such
sale or other disposition. 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.
Each Subsidiary Guarantor that is designated as an Unrestricted Subsidiary
in accordance with the provisions of this Indenture shall be released from its
Subsidiary Guarantee and all related obligations under this Indenture for so
long as it remains an Unrestricted Subsidiary. The Trustee shall deliver an
appropriate instrument evidencing such release upon its receipt of the Board
Resolution designating such Subsidiary Guarantor as an Unrestricted Subsidiary.
Notwithstanding any other provision of this Indenture, each Subsidiary
Guarantor shall be deemed released from its respective Subsidiary Guarantee and
all related obligations under this Indenture in the event that all obligations
of such Subsidiary Guarantor under the guarantee which resulted in the creation
of such Subsidiary Guarantee shall also terminate, except a termination,
discharge or release of such guarantee by or as a result of, payment under such
guarantee. The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officer's
Certificate and Opinion of Counsel certifying that all such obligations of such
Subsidiary Guarantee have terminated.
Any Subsidiary Guarantor not released in accordance with this Section 13.3
shall remain 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 XIII.4 LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirm 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 the Federal Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of such
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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 such a
fraudulent conveyance or fraudulent transfer. This Section 13.4 is for the
benefit of the creditors of each Subsidiary Guarantor.
Section XIII.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 XIII.6 EXECUTION AND DELIVERY OF NOTATIONS OF SUBSIDIARY
GUARANTEES.
To evidence its Subsidiary Guarantee set forth in Section 13.1 hereof,
each Subsidiary Guarantor hereby agrees to execute the notations of Subsidiary
Guarantees in substantially the form set forth in Section 2.4 hereof to be
endorsed on all Securities ordered to be authenticated and delivered by the
Trustee and each Subsidiary Guarantor agrees that this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its President or one of its
Vice Presidents. 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 its President or one of its Vice
Presidents (each of whom shall, in each case, have been duly authorized by all
requisite corporate action) 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 such Subsidiary
Guarantor. 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.
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Section XIII.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 XIII.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 XIII.9 SUBSIDIARY GUARANTORS NOT TO MAKE PAYMENTS WITH RESPECT
TO SUBSIDIARY GUARANTEES IN CERTAIN CIRCUMSTANCES.
(1) 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.
(2) 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
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Specified Guarantor Senior Indebtedness (a "Subsidiary Guarantor Non-payment
Default"), and receipt by the applicable Subsidiary Guarantor and the Trustee of
written notice thereof from one or more of the holders of such Specified
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 Specified Guarantor Senior Indebtedness is paid in full or otherwise
discharged or the holders (or a representative of the holders) of such Specified
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 such Subsidiary Guarantor will resume, (unless
otherwise prohibited pursuant to the immediately preceding paragraph) making any
and all required payments in respect of its Subsidiary Guarantee, including any
missed payments. Notwithstanding the foregoing, not more than one Subsidiary
Guarantor Payment Notice shall be given with respect to any Subsidiary Guarantee
within a period of 360 consecutive days. No Subsidiary Guarantor Non-payment
Default that existed or was continuing on the date of delivery of any Subsidiary
Guarantor Payment Notice with respect to the Specified Guarantor Senior
Indebtedness initiating such Subsidiary Guarantor Payment Notice will be, or can
be, made the basis for the commencement of a subsequent Subsidiary Guarantor
Payment Notice with respect to such Subsidiary Guarantee.
(3) 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 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 XIII.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:
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(1) the holders of such Subsidiary Guarantor's Guarantor Senior
Indebtedness shall be entitled to reserve 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;
(2) 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 Senior Guarantor 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
(3) 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 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
the Trustee of the occurrence of any Insolvency or Liquidation Proceeding with
respect to such Subsidiary Guarantor.
Section XIII.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
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Indebtedness to substantially the same extent as each Subsidiary Guarantee is so
subordinated and which is entitled to the 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
amount 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 XIII.12 OBLIGATIONS OF SUBSIDIARY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the 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, receivers, 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.
Section XIII.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 it shall have received at its Corporate Trust Office written
notice thereof from a Subsidiary Guarantor or from one or
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more holders of Guarantor Senior Indebtedness or Specified 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
Specified 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
Specified 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 XIII.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
payments.
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 XIII.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 any
act or failure to act on the part of such Subsidiary Guarantor or by any act or
failure to act by any such holder, or by any noncompliance by such
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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: (i) 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); (ii) sell, exchange, release or otherwise deal with
any Property pledged, mortgaged or otherwise securing Guarantor Senior
Indebtedness; (iii) 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 (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
Section XIII.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 XIII.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 XIII.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.
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Section XIII.19 PAYMENT.
For purposes of this Article XIII, a payment with respect to any
Subsidiary Guarantor or with respect to principal of or interest on the 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.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section XIV.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, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any, on)
and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full of all Senior Indebtedness, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed or guaranteed;
PROVIDED, HOWEVER, that the Securities, the Indebtedness represented thereby and
the payment of the principal of (and premium, if any, on) and interest on the
Securities in all respects shall rank equally with, or prior to, all existing
and future unsecured Indebtedness (including, without limitation, Indebtedness)
of the Company that is subordinated to 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 holders are made obligees hereunder and any one or
more of them may enforce such provisions.
Section XIV.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of Properties of the Company or payment on behalf of
the Company with respect to the Securities in the event of any Insolvency or
Liquidation Proceeding with respect to the Company:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or cash equivalents of such Senior Indebtedness before
the Holders of the Securities are
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entitled to receive any direct or indirect payment or distribution of any kind
or character, whether in cash, property or securities (other than Permitted
Junior Securities or from any defeasance trust created pursuant to Section 12.1
hereof) on account of principal of (or premium, if any, on) or interest on the
Securities or on account of the purchase or redemption or other acquisition of
the Securities (including pursuant to an optional redemption, a Change of
Control Offer or a Net Proceeds Offer); and
(2) any direct or indirect payment or distribution of Properties of the
Company of any kind or character, whether in cash, property or securities (other
than a payment or distribution in the form of Permitted Junior Securities or
from any defeasance trust created pursuant to Section 12.1 hereof), by set-off
or otherwise, to which the Holders or the Trustee, on behalf of the Holders,
would be entitled but for the provisions of this Article shall be paid by the
Company 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 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 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, the Trustee or the Holder of any Security shall have received any
payment or distribution of Properties of the Company of any kind or character,
whether in cash, property or securities, by set-off or otherwise, in respect of
principal of (and premiums, if any, on) or interest on the Securities before all
Senior Indebtedness is paid in full in cash or cash equivalents, then and in
such event such payment or distribution (other than a payment or distribution in
the form of Permitted Junior Securities or from any defeasance trust created
pursuant to Section 12.1 hereof) 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 in cash or cash
equivalents, 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 into,
another Person or the liquidation or dissolution of the Company following the
sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all its Properties to another Person or group of Affiliated
Persons pursuant to, and in compliance with, the terms and conditions set forth
in Article VIII hereof shall not be deemed an Insolvency or Liquidation
Proceeding (requiring the repayment of all Senior Indebtedness in full as a
prerequisite to any payments being made to the Holders) for the purposes of this
Section.
Section XIV.3 SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT.
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(1) Unless Section 14.2 hereof shall be applicable, upon (a) the
occurrence of a Payment Event of Default and (b) receipt by the Trustee of
written notice of such occurrence, then no payment or distribution of any
Properties of the Company of any kind or character (other than Permitted Junior
Securities or from any defeasance trust created pursuant to Section 12.1 hereof)
shall be made by the Company on account of principal of (or premium, if any, on)
or interest on the Securities or on account of the purchase or redemption or
other acquisition of Securities unless and until such Payment Event of Default
shall have been cured or waived in writing or shall have ceased to exist or such
Senior Indebtedness shall have been paid in full in cash or cash equivalents or
otherwise discharged, after which the Company shall resume making any and all
required payments in respect of the Securities, including any missed payments.
(2) Unless Section 14.2 hereof shall be applicable, upon (a) the
occurrence of a Non payment Event of Default and (b) receipt by the Trustee and
the Company of written notice of such occurrence from one or more of the holders
of Specified Senior Indebtedness (or their representative), then no payment or
distribution of any Properties of the Company of any kind or character (other
than Permitted Junior Securities or from any defeasance trust created pursuant
to Section 12.1 hereof) shall be made by the Company on account of any principal
of (or premium, if any, on) or interest on the Securities or on account of the
purchase or redemption or other acquisition of Securities for the period
specified below (the "Payment Blockage Period"). The Payment Blockage Period
will commence upon the earlier of the dates of receipt by the Trustee or the
Company of such notice (the "Payment Blockage Notice") from one or more of the
holders of Specified Senior Indebtedness (or their representative) and shall end
on the earliest of (a) 179 days thereafter, (b) the date, as set forth in a
written notice from the holders of the Specified Senior Indebtedness (or their
representative) to the Company or the Trustee, on which such Nonpayment Event of
Default is cured, waived in writing or ceases to exist or such Specified Senior
Indebtedness is discharged or (c) the date on which such Payment Blockage Period
shall have been terminated by written notice to the Company or the Trustee from
one or more of the holders (or their representative) initiating such Payment
Blockage Period, after which the Company will resume (unless otherwise
prohibited pursuant to the immediately preceding paragraph) making any and all
required payments in respect of the Securities, including any missed payments.
In any event, not more than one Payment Blockage Period may be commenced during
any period of 360 consecutive days. No Non-payment Event of Default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee will be, or can be, made the basis for the commencement of a subsequent
Payment Blockage Period.
(3) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 14.3, then and in such event such payment
shall be paid over and delivered forthwith to the Company. In the event that the
Company shall make any payment in respect of the Securities to the Trustee and
the Trustee shall receive written notice of a Payment Event of Default or a
Non-payment Event of Default from one or more of the holders of Specified Senior
Indebtedness (or their representative) prior to making any payment to Holders in
respect of the
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Securities 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.
Section XIV.4 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent the Company, at any time except during the
pendency of any Insolvency or Liquidation Proceeding referred to in Section 14.2
hereof or under the conditions described in Section 14.3 hereof, from making
payments at any time of principal of (and premium, if any, on) or interest on
the Securities.
Section XIV.5 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
After the payment in full 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 Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to Senior Indebtedness until all amounts
owing on the Securities shall be paid in full in cash or cash equivalents. For
purposes of such subrogation, no payment or distributions to the holders of
Senior Indebtedness by or on behalf of the Company or by or on behalf of the
Holders by virtue of this Article which otherwise would have been made to the
Holders shall, as between the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be decreed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section XIV.6 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are, and are intended solely, for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (i) impair, as between the Company 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 (and premium, if any,
on) and interest on the Securities as and when the same shall become due and
payable in accordance with their terms; or (ii) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (iii) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness.
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Section XIV.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 and appoints the
Trustee as his attorney-in-fact for any and all such purposes, including, in the
event of any Insolvency or Liquidation Proceeding with respect to the Company,
the immediate filing of a claim for the unpaid balance of his Securities
pursuant to this Indenture in the form required in said proceedings and the
causing of said claim to be approved.
Section XIV.8 NO WAIVER OF SUBORDINATION PROVISION.
(1) 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.
(2) Without in any way limiting the generally of paragraph (i) of this
Section, the holders of any Senior Indebtedness, in accordance with the terms of
the instrument or agreement evidencing their 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 Senior Indebtedness, do any one or more of
the following: (a) change the manner, place or terms of payment or extend the
time of payment of, or renew, exchange, amend, increase or alter, Senior
Indebtedness or the terms of any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding or any liability of any obligor
thereon (unless such change, extension, amendment, increase or other alteration
results in such Indebtedness no longer being Senior Indebtedness as defined in
this Indenture); (b) sell, exchange, release or otherwise deal with any Property
pledged, mortgaged or otherwise securing Senior Indebtedness; (c) settle or
compromise any Senior Indebtedness or any liability of any obligor thereon or
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
Section XIV.9 NOTICE TO TRUSTEE.
(1) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities,
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unless and until the Trustee shall have received written notice thereof from the
Company or one or more of the holders of Senior Indebtedness (or their
representative), with respect to a Payment Default, or one or more of the
holders of Specified Senior Indebtedness (or their representatives), with
respect to a Non-payment Event of Default, or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), 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 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
(including, without limitation, the payment of the principal of (and premium, if
any, on) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it on or after 11:00 a.m., Eastern time, two Business Days prior to
such payment date.
(2) 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 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, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee or the Holders of Securities, 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 thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section XIV.10 RELIANCE OF JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT BANK.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Insolvency or
Liquidation Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
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Section XIV.11 RIGHTS OF TRUSTEE AS A 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 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 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 hereof.
Section XIV.12 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time a Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; PROVIDED, HOWEVER, that
Section 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 XIV.13 NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 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 or under applicable law, except as provided in Article V hereof.
Section XIV.14 TRUST MONEY NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of U.S. Government Obligations held in trust under Article
XII hereof by the Trustee (or other qualifying trustee) and which were deposited
in accordance with the terms of Article XII hereof and not in violation of
Section 14.3 hereof for the payment of principal of (and premium, if any, on)
and interest on the Securities shall not be subordinated to the prior payment of
any Senior Indebtedness or subject to the restrictions set forth in this Article
XIV, and none of the Holders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness or any other creditor of the
Company.
ARTICLE XV
MISCELLANEOUS
Section XV.1 COMPLIANCE CERTIFICATES AND OPINIONS.
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Upon any application or request by the Company or any Subsidiary Guarantor
to the Trustee to take any action under any provision of this Indenture, the
Company 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 XV.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 may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate, or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such Opinion of Counsel may be based, insofar as it relates to factual matters,
upon an officers' certificate, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is erroneous.
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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 XV.3 ACTS OF HOLDERS.
(1) 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.
(2) 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.
(3) 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.
(4) 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 requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice,
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consent, waiver 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.
(5) 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 XV.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 (in the English language) 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 (in the English language) and
delivered in person or mailed by certified or registered mail (return
receipt requested) to the Company or such Subsidiary Guarantor, as
applicable, addressed to it at the Company's principal office located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at any other
address otherwise furnished in writing to the Trustee by the Company.
Section XV.5 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders by the
Company, the Trustee or any Paying Agent, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing (in the English
language) and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, 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
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such notice, either herein or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of 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 XV.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 XV.7 SUCCESSORS AND ASSIGNS.
All caveats 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 XV.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 therefor against
any party hereto.
Section XV.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 and, to the
extent set forth in Section 13.4 hereof, creditors of Subsidiary Guarantors, the
holders of Senior Indebtedness and the holders of Guarantor Senior Indebtedness)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section XV.10 GOVERNING LAW; TRUST INDENTURE ACT CONTROLS.
(1) 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 SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
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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 THE SUBSIDIARY GUARANTEES, 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.
(2) This Indenture is subject to the provisions of the Trust Indenture Act
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 operation of Section 313(c) of the Trust Indenture Act, or conflicts
with any provision (an "incorporated provision") required by or deemed to be
included in this Indenture by operation of such Trust Indenture Act section,
such imposed duties or incorporated provision shall control.
Section XV.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 Guarantee) 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, HOWEVER, 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 XV.12 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, incorporator or Affiliate, as
such, past, present or future, of the Company or any Subsidiary Guarantor shall
not have any personal liability under the Securities or this Indenture by reason
of his or its status as a director, officer, employee, stockholder, incorporator
or Affiliate or any liability for any obligations of the Company or any
Subsidiary Guarantor 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 XV.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 XV.14 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
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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, all as of the day and year first above written.
ISSUER
BELLWETHER EXPLORATION COMPANY,
By: __________________________
Name:_____________________
Title:____________________
SUBSIDIARY GUARANTORS:
ODYSSEY PETROLEUM COMPANY,
By: __________________________
Name:_____________________
Title:____________________
TRUSTEE:
______________________________
By: __________________________
Name:_____________________
Title:____________________
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