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EXHIBIT 4.3
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NEWFIELD EXPLORATION COMPANY
as Issuer,
AND
FIRST UNION NATIONAL BANK
as Trustee
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INDENTURE
DATED AS OF OCTOBER 15, 1997
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US$125,000,000
7.45% SENIOR NOTES DUE 2007
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1).....................................................7.10
(a)(2)........................................................7.10
(a)(3)........................................................N.A.
(a)(4)........................................................N.A.
(b).....................................................7.08; 7.10
(c)...........................................................N.A.
311(a)........................................................7.11
(b)...........................................................7.11
(c)...........................................................N.A.
312(a)..................................................2.06; 2.13
(b)..........................................................10.03
(c)..........................................................10.03
313(a)........................................................7.06
(b)...........................................................7.06
(c)...........................................................7.06
(d)...........................................................7.06
314(a)........................................................4.03
(b)...........................................................N.A.
(c)(1).......................................................10.04
(c)(2).......................................................10.04
(c)(3)........................................................N.A.
(d)...........................................................N.A.
(e)..........................................................10.05
(f)...........................................................N.A.
315(a).....................................................7.01(2)
(b)...........................................................7.05
(c)........................................................7.01(1)
(d)........................................................7.01(3)
(e)...........................................................6.11
316(a)(last sentence).........................................2.09
(a)(1)(A).....................................................6.05
(a)(1)(B).....................................................6.04
(a)(2)........................................................N.A.
(b)...........................................................6.07
(c)...........................................................N.A.
317(a)(1).....................................................6.08
(a)(2)........................................................6.09
(b)...........................................................2.04
318(a).......................................................10.01
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N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of
this Indenture.
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INDENTURE dated as of October 15, 1997 by and between Newfield
Exploration Company, a Delaware corporation (the "Company"), and First Union
National Bank, a national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 7.45% Senior
Notes due 2007 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, control
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The Trustee may request and may
conclusively rely upon an Officers' Certificate to determine whether any Person
is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"Attributable Indebtedness", when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at a rate equivalent to the Company's then current weighted
average cost of funds for borrowed money as at the time of determination,
compounded on a semiannual basis) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease can be
extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means and includes any and all shares,
rights to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock
and partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any obligation of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for
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financial reporting purposes in accordance with GAAP; and the amount of such
obligation shall be the capitalized amount thereof determined in accordance
with GAAP.
"Common Equity" of any Person means and includes all Capital Stock of
such Person that is generally entitled to (i) vote in the election of directors
of such Person, or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, for the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, the aggregate amounts of assets (less depreciation and valuation reserves
and other reserves and items deductible from gross book value of specific asset
accounts under GAAP) that would be included on a balance sheet after deducting
therefrom (a) all liability items except deferred income taxes, Funded
Indebtedness, other long-term liabilities and shareholders' equity and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles.
"Corporate Trust Office of the Trustee" means the address of the
Trustee specified in Section 10.02 or such other address as the Trustee may
give notice thereof to the Company.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time that were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form
of a Global Certificate, the Person designated as Depository by the Company
until a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depository" shall mean or include
each Person who is then a Depository hereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
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"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect as of the relevant time.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person at any date means, without duplication,
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof), (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit incurred by such Person in the ordinary course of business, (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred in
the ordinary course of business, (v) all Capitalized Lease Obligations of such
Person, (vi) all Indebtedness of others secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, (vii) all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee and (viii) all obligations of such Person in respect of Currency
Hedge Obligations, Interest Rate Hedging Agreements and Oil and Gas Hedging
Contracts.
"Indenture" means this Indenture as amended from time to time.
"Independent Investment Banker" means an independent investment
banking institution of national standing appointed by the Company for purposes
of calculating any Make-Whole Premium, provided, that if the Company fails to
make such appointment at least 45 Business Days prior to the Redemption Date
for any Security to be redeemed, or if the institution so appointed is
unwilling or unable to make such calculation, such calculation will be made by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or, if such firm is unwilling or unable to make such
calculation, by an independent investment banking institution of national
standing appointed by the Trustee.
"Interest Payment Date" shall have the meaning assigned to such term
in the Securities.
"Interest Rate Hedging Agreements" means, with respect to any Person,
the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates.
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"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Indenture, the Company or any Restricted Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement,
Capitalized Lease Obligation (other than any Capitalized Lease Obligation
relating to any building, structure, equipment or other property used or to be
used in the ordinary course of business of the Company and the Restricted
Subsidiaries) or other title retention agreement relating to such asset.
"Make-Whole Premium" means, with respect to any Security (or portion
thereof) to be redeemed, an amount equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the
Redemption Date, of:
(A) each interest payment that, but for such redemption,
would have been payable on the Security (or portion thereof)
being redeemed on each Interest Payment Date occurring after the
Redemption Date (excluding any accrued interest for the period
prior to the Redemption Date); and
(B) the principal amount that, but for such redemption,
would have been payable at the final maturity of the Security
(or portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof)
being redeemed.
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield plus 25 basis points. The
Make-Whole Premium will be calculated by an Independent Investment Banker.
For purposes of determining the Make-Whole Premium, "Treasury Yield"
means a rate of interest per annum equal to the weekly average yield to
maturity of United States Treasury Notes that have a constant maturity that
corresponds to the remaining term to maturity of the Securities, calculated to
the nearest 1/12 of a year (the "Remaining Term"). The Treasury Yield will be
determined as of the third business day immediately preceding the applicable
Redemption Date. The weekly average yields of United States Treasury Notes will
be determined by reference to the most recent statistical release published by
the Federal Reserve Bank of New York and designated
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"H.15(519) Selected Interest Rates" or any successor release (the "H.15
Statistical Release"). If the H.15 Statistical Release sets forth a weekly
average yield for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield will be equal to
such weekly average yield. In all other cases, the Treasury Yield will be
calculated by interpolation, on a straight-line basis, between the weekly
average yields on the United States Treasury Notes that have a constant
maturity closest to and greater than the Remaining Term and the United States
Treasury Notes that have a constant maturity closest to and less than the
Remaining Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields so calculated by interpolation will be rounded to the
nearest 1/100 of 1%, with any figure of 1/200% or above being rounded upward.
If weekly average yields for United States Treasury Notes are not available in
the H.15 Statistical Release or otherwise, then the Treasury Yield will be
calculated by interpolation of comparable rates selected by the Independent
Investment Banker.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Restricted Subsidiary, the aggregate net
proceeds received by the Company or such Restricted Subsidiary from such
Sale/Leaseback Transaction after payment of expenses, taxes, commissions and
similar amounts incurred in connection therewith, whether such proceeds are in
cash or in property (valued at the fair market value thereof at the time of
receipt, as determined by the Board of Directors).
"Officer" means the President, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary, any Assistant Secretary or any Vice President or
Assistant Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers of
a Person, one of whom must be the Person's chief executive officer, principal
financial officer or principal accounting officer.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or
levies on the property of the Company or any Restricted
Subsidiary if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have
been recorded on the books of the Company;
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens
arising in the ordinary course of
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business which secure obligations not more than 60 days
past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been recorded on the books
of the Company;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation;
(d) Easements, restrictions and such other encumbrances or
charges against real property as are of a nature generally
existing with respect to properties of a similar character
and which do not in any material way interfere with the use
thereof in the ordinary course of business of the Company
and the Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar
agreements in respect of obligations which are not yet due
or which are being contested in good faith by appropriate
proceedings;
(f) Liens reserved in oil, gas and/or mineral leases,
production sharing contracts and petroleum concession
agreements and licenses for bonus or rental payments and
for compliance with the terms of such leases, contracts,
agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or
mineral leases, production sharing contracts, petroleum
concession agreements and licenses, farm-out agreements,
division orders, contracts for the sale, purchase,
exchange, processing or transportation of oil, gas and/or
other hydrocarbons, unitization and pooling declarations
and agreements, operating agreements, development
agreements, area of mutual interest agreements, and other
agreements which are customary in the oil, gas and other
mineral exploration, development and production business
and in the business of processing of gas and gas condensate
production for the extraction of products therefrom;
(h) Liens imposed by law or order as a result of any proceeding
before any court or regulatory body that is being contested
in good faith, and Liens which secure a judgment or other
court-ordered award or settlement as to which the Company
has not exhausted its appellate rights.
"Pari Passu Indebtedness" means any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall be subordinated in right of
payment to the Securities.
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"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, limited liability company,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"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 2.08 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security, shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a Security means the principal thereof plus, when
appropriate, the premium, if any, on such security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" shall have the meaning assigned to such term in the
Securities.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities means the immediately preceding date specified as a
Record Date in the Securities for that purpose.
"Restricted Subsidiary" means any Subsidiary the principal business of
which is carried on in, or the majority of the operating assets of which are
located in, the United States (including areas subject to its jurisdiction).
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
2.09.
"Subsidiary" of any Person means any corporation of which at least a
majority of the aggregate voting power of all classes of the Common Equity is
owned by such Person directly or through one or more other Subsidiaries of such
Person, and any entity other than a corporation in
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which such Person, directly or indirectly, owns at least a majority of the
Common Equity of such entity.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
▇▇.▇▇. 77aaa-77bbbb), as in effect on the relevant date.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America, obligations on which the payment of principal and interest
is fully guaranteed by the United States of America or obligations or
guarantees for the payment of which the full faith and credit of the United
States of America is pledged.
Section 1.02 Other Definitions.
DEFINED IN
TERM SECTION
---- ---------
"Agent Members"............................................2.07
"Defaulted Interest".......................................2.09
"Custodian"................................................6.01
"Event of Default".........................................6.01
"Global Certificate".......................................2.01
"Legal Holiday"...........................................10.07
"Non-U.S. Person"..........................................2.18
"Paying Agent".............................................2.10
"Physical Certificates"....................................2.01
"Private Placement Legend..................................2.18
"QIB"......................................................2.18
"Registration Rights Agreement"............................2.18
"Regulation S".............................................2.18
"Security Register"........................................2.06
"Security Registrar" or "Registrar"........................2.06
"Stated Maturity"..........................................2.02
"Successor"................................................5.01
Section 1.03 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.
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All terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.01 Forms of Securities 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, as evidenced by their
execution of such Securities.
The Securities (including the Trustee's certificate of authentication)
shall be issued initially in the form of one or more global Securities
substantially in the form set forth on Exhibit A hereof (each being called a
"Global Certificate") deposited with The Depository Trust Company (the
"Depository"), and registered in the name of its nominee (such nominee being
referred to herein as the "Global Certificate Holder"), or will remain in the
custody of the Trustee pursuant to a FAST Balance Certificate Agreement or
similar agreement between the Depository and the Trustee, and shall be duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Subject to the limitation set forth in Section 2.02, the principal
amount of the Global Certificates may be increased or decreased from time to
time by adjustments made on the records of the Trustee as custodian for the
Depository, as hereinafter provided.
The Securities exchanged for beneficial interests in a Global
Certificate as described in Section 2.07 shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A hereto ("Physical Certificates").
The Securities, and the Trustee's certificate of authentication shall
be in substantially the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and
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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
Securities Act or the rules of any securities exchange or as may, consistently
herewith, be determined by the Officers executing such Securities as evidenced
by their execution of the Securities. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Security. In addition to the requirements of Exhibit A, the
Securities may also have set forth on the reverse side thereof a form of
assignment.
Section 2.02 Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture for original issue is limited
to $125,000,000, and the amount of Securities outstanding at any one time may
not exceed $125,000,000 except as provided in Section 2.08 hereof.
The Securities shall be known and designated as the "7.45% Senior
Notes due 2007" of the Company. Their Stated Maturity shall be October 15,
2007, and they shall bear interest at the rate of 7.45% per annum from October
15, 1997, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable semiannually on April 15 and October 15
in each year, commencing April 15, 1998, and at said Stated Maturity, until the
principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest will 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 3 hereof.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article 8 hereof.
Section 2.03 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 2.04 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or a Vice President of the Company, under
its corporate seal affixed thereto or reproduced thereon and attested by its
Secretary or an Assistant Secretary of the Company. The signature of any
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of these Officers on the Securities may be manual or facsimile signatures of
such 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 individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company 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 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 in Exhibit
A hereto, 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 Section 5.01
hereof, shall be consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of its properties or assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company
shall have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Section 5.01 hereof,
any of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other Securities
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Request of the successor Person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
Section 2.05 Temporary Securities.
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Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the Officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
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 4.02
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. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.06 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register (the register maintained
in such office and in any other office or agency designated pursuant to Section
4.02 hereof being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times and during normal business hours, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar" or the "Registrar") for the
purpose of registering Securities and transfers of Securities as herein
provided.
Subject to the provisions of this Section, Section 2.07 and Section
2.18, upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 4.02 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.
Furthermore, any Holder of a Global Certificate shall, by acceptance
of such Global Certificate, agree that transfers of beneficial interest in such
Global Certificate shall be subject to Section 2.18 and may be effected only
through a book-entry system maintained by the Holder of such Global Certificate
(or its agent), and that ownership of a beneficial interest in the Security
shall be required to be reflected in a book entry.
At the option of the 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 such office or
agency. Whenever any Securities are so surrendered for exchange,
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the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the 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 2.05, 2.07, 3.06 or 9.05
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 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 3.02
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
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section 2.07 Book-Entry Provisions for Global Certificates.
Each Global Certificate shall be registered in the name of the
Depository for such Global Certificate or the nominee of such Depository and
may be delivered to the Trustee as custodian for such Depository. Each Global
Certificate shall represent such of the outstanding Securities as shall be
specified therein and may provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Global Certificate
to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made by the Trustee in the
manner provided for herein.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Certificate held
on their behalf by the Depository, or the Trustee as its custodian, or under
such Global Certificate, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Certificate for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by the Depository or shall impair,
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as between the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial owner of any
Security.
Transfers of a Global Certificate shall be limited to transfers of
such Global Certificate in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial owners in a
Global Certificate may be transferred in accordance with the rules and
procedures of the Depository. Physical Certificates shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Certificate if, and only if, either (1) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the Global
Certificate and a successor Depository is not appointed by the Company within
90 days of such notice, (2) an Event of Default has occurred and is continuing
and the Security Registrar has received a request from the Depository to issue
Physical Certificates in lieu of all or a portion of the Global Certificate (in
which case the Company shall deliver Physical Certificates within 30 days of
such request) or (3) the Company determines not to have the Securities
represented by a Global Certificate.
In connection with any transfer of a portion of the beneficial
interest in a Global Certificate to beneficial owners pursuant to this Section,
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Global Certificate in an amount equal to the
principal amount of the beneficial interest in the Global Certificate to be
transferred, and the Company shall execute, and the Trustee upon receipt of a
Company Order for the authentication and delivery of Physical Certificates
shall authenticate and deliver, one or more Physical Certificates of like tenor
and amount.
In connection with the transfer of an entire Global Certificate to
beneficial owners pursuant to this Section, the Global Certificate 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 Depository in exchange for its beneficial interest in
the Global Certificate, an equal aggregate principal amount of Physical
Certificates of authorized denominations.
The registered holder of a Global Certificate 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 2.08 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute, and upon Company Order the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, 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 2.09 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
4.02 hereof.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the Holder on the Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Securities (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited shall be held
in trust for
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the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date, and in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to
be given in the manner provided for in Section 10.02 hereof, not
less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause
(b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.10 Paying Agent.
The Company shall also maintain an office or agency where Securities
may be presented for payment ("Paying Agent"). The Company may appoint one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Paying Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent.
The Company initially appoints the Trustee to act as the Paying Agent
with respect to the Securities.
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Section 2.11 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest, on the Securities, and shall notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
sole Paying Agent for the Securities.
Section 2.12 Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Security Registrar, the Trustee and any agent of the
Company, or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of (and premium, if any, on) and (subject to Section 2.09 hereof)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and none of the Company, the Security Registrar, the
Trustee or any agent of the Company, or the Trustee shall be affected by notice
to the contrary.
Section 2.13 Holder Lists.
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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA Section 312(a).
Section 2.14 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global
Certificate effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.15 hereof, a Security does not cease to be outstanding because the
Company, a Subsidiary or an Affiliate of the Company holds the Security.
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If a Security is replaced pursuant to Section 2.08 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.15 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, a Subsidiary or by any Affiliate of the Company shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the Trustee actually knows
are so owned shall be so disregarded.
Section 2.16 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be destroyed and a certificate of their destruction
delivered to the Company unless by a Company Order the Company shall direct
that cancelled Securities be returned to it.
Section 2.17 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Section 2.18 Transfer Restrictions.
Unless and until, pursuant to the Exchange and Registration Rights
Agreement dated as of October 15, 1997 among the Company and the Purchasers
named therein (the "Registration Rights Agreement"), (i) a Security is sold
under an effective Registration Statement (as defined in the Registration
Rights Agreement) or (ii) a Security is exchanged for an Exchange Security (as
defined in the Registration Rights Agreement) in connection with an effective
Registration Statement, each
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Security shall bear the third legend (the "Private Placement Legend") set forth
on the face of the form set forth in Exhibit A hereto, and the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect
to the registration of any proposed transfer of a Security to (1) any
institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) that is not
a qualified institutional buyer as defined in Rule 144 (a "QIB") or
(2) any person who is not a United States person (a "Non-U.S.
Person"), as defined in Regulation S under the Securities Act
("Regulation S"):
(i) The Registrar shall register the transfer of any
Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is at least two
years after the later of original issue date of the Security and
the last date on which the Company or any Affiliate of the
Company was the owner of such Security or (y) a certificate
substantially in the form of Exhibit A to the Security has been
delivered to the Registrar and a letter substantially in the
form of Exhibit B or C, as applicable, to the Security, has been
delivered to the Registrar.
(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in a Global Certificate, upon receipt by
the Registrar of (x) the documents, if any, required by
paragraph (i) above and (y) instructions given in accordance
with the Depositary's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Global Certificate
in an amount equal to the principal amount of the beneficial
interest in the Global Certificate to be transferred, and the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more Securities not represented by a Global
Certificate of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security to
a QIB (excluding a Non-U.S. Person who elects not to hold a
beneficial interest in a Global Certificate):
(i) If the Security to be transferred is not represented by
a Global Certificate, the Registrar shall register the transfer
if such transfer is being made by a proposed transferor who has
checked the box provided for on a certificate substantially in
the form of Exhibit A to the Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to
a transferee who has signed the certification provided for on
such certificate stating, or has otherwise advised the Company
and the Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it
exercises sole investment discretion and that it, or the person
on whose behalf it is acting with respect to any such account,
is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such
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information regarding the Company as it has requested pursuant
to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member and the
Security to be transferred is not represented by a Global
Certificate, upon receipt by the Registrar of instructions given
in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of
the Global Certificate in an amount equal to the principal
amount of such Security to be transferred, and the Trustee shall
cancel the Security so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of a Security not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private
Placement Legend unless the transferor is the Company or an Affiliate
of the Company. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall
deliver only Securities that bear the Private Placement Legend unless
either (i) the circumstances contemplated by (a) (i) (x) of this
section have been satisfied or (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth herein and in
the Private Placement Legend and agrees that it will transfer such
Security only as provided herein and in the Indenture.
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Securities pursuant to the redemption
provisions of Section 3.07, it shall furnish to the Trustee, at least 45 days
but not more than 60 days before a Redemption Date, an Officers' Certificate
setting forth the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price.
Section 3.02 Selection of Securities to be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by such method as the Trustee in its
sole discretion shall deem fair and appropriate. The particular Securities to
be redeemed shall be selected, unless otherwise provided herein, not less
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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.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. Securities
and portions of them selected shall be in amounts of $1,000 or whole multiples
of $1,000. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 3.03 Notices to Holders.
(a) At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail in conformity with
Section 10.02 a notice of redemption to each Holder whose
Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the
unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect
the Redemption Price;
(vi) that unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date and the only remaining
right of the Holders is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Securities; and
(vii) the aggregate principal amount of Securities being redeemed.
(b) At the Company's request, the Trustee shall give the notice
required in Section 3.03(a) in the Company's name;
provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the Redemption Date, an
Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in
such notice as provided in Section 3.03(a).
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Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed pursuant to Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price. Upon surrender to the Paying Agent, such Securities
shall be paid out at the Redemption Price.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the Redemption Date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date. The Trustee or
the Paying Agent shall return to the Company any money not required for that
purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the
Securities or portions thereof to be redeemed (whether or not such Securities
are presented for payment) will cease to accrue on the applicable Redemption
Date. If any Security called for redemption shall not be so paid upon surrender
because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal and premium, if any, from
the Redemption Date until such principal and premium are paid and, to the
extent lawful, on any interest not paid on such unpaid principal, in each case
at the rate provided in the Securities and in Section 4.01.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder, at the expense
of the Company, a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
Section 3.07 Optional Redemption.
The Securities may be redeemed at any time, at the option of the
Company, in whole or from time to time in part, at the Redemption Price
specified in the Securities.
Any redemption pursuant to this Section 3.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.01 through 3.06.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of, and premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities. Principal, premium and interest shall be considered paid on the
date due if the Paying Agent, other than the Company or a Subsidiary of the
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Company, holds on that date money deposited by the Company designated for and
sufficient to pay all principal, premium and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal, and premium, if
any, at a rate equal to the then applicable interest rate on the Securities to
the extent lawful; and it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain, in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee, the
Registrar or the Paying Agent), initially such office will be located at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, New York 10004, where Securities
may be presented for registration of transfer or exchange and where Securities
may be presented for payment. Unless otherwise designated by the Company by
written notice to the Trustee, such office or agency shall be the Corporate
Trust Office of the Trustee. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations may be made at the Corporate Trust Office of the Trustee.
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 such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.02.
Section 4.03 SEC Reports; Financial Statements.
(a) The Company shall file with the Trustee, within 15 days
after it files the same with the SEC, copies of the annual
reports and the information, documents and other reports
(or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to
Section 13 or 15 (d) of the Exchange Act. If the Company is
not subject to the requirements of such Section 13 or
15(d), the Company shall file with the Trustee, within 15
days after it would have been required to file the same
with the SEC, financial statements, including any notes
thereto (and with respect to annual reports, an auditors'
report by a firm of established national reputation), and a
"Management's Discussion and Analysis of Financial
Condition and Results of Operations," both comparable to
that which the Company would have been required to include
in such annual reports, information, documents or other
reports if the
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Company had been subject to the requirements of such
Section 13 or 15 (d). The Company shall also comply with
the provisions of TIA ss. 314 (a).
(b) If the Company is required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act,
the Company shall cause any annual report furnished to its
stockholders generally and any quarterly or other financial
reports furnished by it to its stockholders generally to be
filed with the Trustee and mailed to the Holders at their
addresses appearing in the Security Register. If the
Company is not required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act,
the Company shall cause its financial statements referred
to in Section 4.03 (a), including any notes thereto (and
with respect to annual reports, an auditors' report by a
firm of established national reputation), and a
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" to be so mailed to the
Holders within 90 days after the end of each of the
Company's fiscal years and within 60 days after the end of
each of the Company's first three fiscal quarters.
(c) If the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall
furnish to all Holders of Securities and prospective
purchasers of Securities designated by the Holders of
Securities, promptly upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4)
promulgated under the Securities Act.
(d) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and
information that the Trustee may be required to deliver to
Holders under this Section.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision
of the signing Officers of the Company 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 his knowledge
the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is
not in default in the performance or observance of any of
the terms, provisions and conditions hereof, without regard
to any grace period or requirement of notice required by
this Indenture (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) and that to the best of his knowledge no
event has
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occurred and remains in existence by reason of which
payments on account of the principal of, or premium, if any,
or interest, if any, on the Securities are prohibited or,
if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants,
the year-end financial statements delivered pursuant to
Section 4.03 shall be accompanied by a written statement of
the Company's independent public accountants (who shall be
a firm of established national reputation) that in making
the examination necessary for certification of such
financial statements nothing has come to their attention
that would lead them to believe that the Company has
violated any provisions of Articles 4 or 5 of this
Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred,
specifying the nature and period of existence thereof, it
being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any
Officer of the Company becoming aware of any Default or
Event of Default under this Indenture, an Officers'
Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Corporate Existence.
Except as permitted by Section 5.01, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership and other existence of each
of its Subsidiaries and all rights (charter and statutory) and franchises of
the Company and its Subsidiaries, provided that the Company shall not be
required to preserve the corporate existence of any Subsidiary of the Company
or any such right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and the Subsidiaries and that the loss thereof would not have a
material adverse effect on the business, prospects, assets or financial
condition of the Company and its Subsidiaries taken as a whole and would not
have any material adverse effect on the payment and performance of the
obligations of the Company under the Securities and this Indenture.
Section 4.06 Maintenance of Properties.
The Company shall cause all properties owned by the Company or any of
its Subsidiaries or used or held for use in the conduct of its business or the
business of any such Subsidiary to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may
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be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any such Subsidiary and not disadvantageous in any material respect
to the Holders.
Section 4.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, 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 of its Subsidiaries; provided that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 4.08 Limitation on Sale/Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with any Person (other than the
Company or a Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled
to incur Indebtedness, in a principal amount equal to the
Attributable Indebtedness with respect to such
Sale/Leaseback Transaction, secured by a Lien on the
property subject to such Sale/Leaseback Transaction
pursuant to Section 4.09 without equally and ratably
securing the Securities pursuant to such Section;
(b) after the Issue Date and within a period commencing six
months prior to the consummation of such Sale/Leaseback
Transaction and ending six months after the consummation
thereof, the Company or such Restricted Subsidiary shall
have expended for property used or to be used in the
ordinary course of business of the Company and the
Restricted Subsidiaries (including amounts expended for the
exploration, drilling or development thereof, and for
additions, alterations, repairs and improvements thereto)
an amount equal to all or a portion of the Net Proceeds of
such Sale/Leaseback Transaction and the Company shall have
elected to designate such amount pursuant to this clause
(b) with respect to such Sale/Leaseback Transaction (with
any such amount not being so designated and not permitted
under clause (a) to be applied as set forth in clause (c)
below); or
(c) the Company, during the 12-month period after the effective
date of such Sale/Leaseback Transaction, shall have applied
to the voluntary defeasance or retirement of Securities or
any Pari Passu Indebtedness an amount equal
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to the greater of the Net Proceeds of the sale or transfer
of the property leased in such Sale/Leaseback Transaction
and the fair value, as determined by the Board of
Directors, of such property at the time of entering into
such Sale/Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount
designated by the Company as set forth in clause (b)
above), less an amount equal to the principal amount of
Securities and Pari Passu Indebtedness voluntarily defeased
or retired by the Company within such 12-month period and
not designated with respect to any other Sale/Leaseback
Transaction entered into by the Company or any Restricted
Subsidiary during such period.
Section 4.09 Limitation on Liens.
No provision of this Indenture or the Securities shall in any way
restrict or prevent the Company or any Subsidiary from issuing, assuming,
guaranteeing or otherwise incurring any Indebtedness; provided, however, that
the Company shall not, and shall not permit any Restricted Subsidiary to,
issue, assume or guarantee any Indebtedness for borrowed money secured by any
Lien on any property or asset now owned or hereafter acquired by the Company or
such Restricted Subsidiary without making effective provision whereby any and
all Securities then or thereafter outstanding will be secured by a Lien equally
and ratably with any and all other obligations thereby secured for so long as
any such obligations shall be so secured. Notwithstanding the foregoing, the
Company or any Restricted Subsidiary may, without so securing the Securities,
issue, assume or guarantee Indebtedness secured by the following Liens:
(a) Liens existing on the Issue Date or provided for under the
terms of agreements existing on the Issue Date (including,
without limitation, the Lien provided for pursuant to
Section 7.07);
(b) Liens on property or properties (including any properties
or assets, real or personal, or improvements used or to be
used in connection with such property) securing (i) all or
any portion of the cost of exploration, drilling or
development of such property or properties, (ii) all or any
portion of the cost of acquiring, constructing, altering,
improving or repairing any property or assets, real or
personal, or improvements used or to be used in connection
with such property or properties or (iii) Indebtedness
incurred by the Company or any Restricted Subsidiary to
provide funds for the activities set forth in clauses (i)
and (ii) above with respect to such property or properties;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary
to the Company or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of
such property by the Company or a Subsidiary or Liens on
the property of any Person existing at the time such Person
becomes a Restricted Subsidiary of the Company or is merged
with the Company in compliance with Article V hereof and in
either
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case not incurred as a result of (or in connection with or
in anticipation of) the acquisition of such property or
such Person becoming a Restricted Subsidiary of the Company
or being merged with the Company, provided that such Liens
do not extend to or cover any property or assets of the
Company or any of its Restricted Subsidiaries other than
the property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing
of pollution control or abatement facilities or other forms
of industrial revenue bond financing or (ii) Indebtedness
issued or guaranteed by the United States or any State
thereof or any department, agency or instrumentality of
either;
(f) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any
type permitted under clauses (a) through (e) above,
provided that such Lien extends to or covers only the
property that is subject to the Lien being extended,
renewed or replaced;
(g) any Ordinary Course Lien arising, but only so long as
continuing, in the ordinary course of business of the
Company and the Restricted Subsidiaries;
(h) any Lien resulting from the deposit of moneys or evidences
of Indebtedness in trust for the purpose of defeasing
Indebtedness of the Company or any Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise
permitted under clauses (a) through (h) above) securing
Indebtedness of the Company or any Restricted Subsidiary in
an aggregate principal amount which, together with the
aggregate amount of Attributable Indebtedness deemed to be
outstanding in respect of all Sale/Leaseback Transactions
entered into pursuant to clause (a) of Section 4.08
(exclusive of any such Sale/Leaseback Transactions
otherwise permitted under clauses (a) through (h) above),
does not at the time such Indebtedness is incurred exceed
7.5% of the Consolidated Net Tangible Assets of the Company
(as shown in the most recent published quarterly or
year-end consolidated balance sheet of the Company and its
Subsidiaries).
Notwithstanding the foregoing, nothing in this Section 4.09 shall be
deemed to prohibit or otherwise limit the following types of transactions:
(1) the sale, granting of Liens with respect to, or other
transfer of, crude oil, natural gas or other petroleum hydrocarbons
in place for a period of time until, or in an amount such that, the
transferee will realize therefrom a specified amount (however
determined) of money or of such crude oil, natural gas or other
petroleum hydrocarbons;
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(2) the sale or other transfer of any other interest in
property of the character commonly referred to as a production
payment, overriding royalty, forward sale or similar interest;
(3) the entering into of Currency Hedge Obligations, Interest
Rate Hedging Agreements or Oil and Gas Hedging Contracts although
Liens securing any Indebtedness for borrowed money that is the subject
of any such obligations shall not be permitted hereby unless permitted
under clauses (a) through (i) above; and
(4) the granting of Liens required by any contract or statute
in order to permit the Company or any Restricted Subsidiary to perform
any contract or subcontract made by it with or at the request of the
United States or any State thereof or any department, agency or
instrumentality of either, or to secure partial, progress, advance or
other payments to the Company or any Restricted Subsidiary by such
governmental unit pursuant to the provisions of any contract or
statute.
Section 4.10 Addition of Guarantors.
(a) If any Subsidiary of the Company guarantees any Funded
Indebtedness of the Company at any time subsequent to the
Issue Date, then the Company shall (i) cause the Securities
to be equally and ratably guaranteed by such Subsidiary,
but only to the extent that the Securities are not already
guaranteed by such Subsidiary on reasonably comparable
terms and (ii) cause such Subsidiary to execute and deliver
a supplemental indenture evidencing its provision of a
guarantee in accordance with clause (b) below.
(b) Any Person may become a guarantor of the Securities by
executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee
which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a
guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture
has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable
obligation of such Person (subject to such customary
exceptions concerning creditors' rights and equitable
principles as may be acceptable to the Trustee in its
discretion and provided that no opinion need be rendered
concerning the enforceability of such guarantee) and that
the issuance of the guarantee is in compliance with
applicable federal and state securities laws.
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ARTICLE V
SUCCESSORS
Section 5.01 Limitations on Mergers and Consolidations.
The Company will not consolidate or merge with or into any Person, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets, or assign any of its obligations hereunder or under the Securities, to
any Person, unless:
(a) the Person formed by or surviving such consolidation or
merger (if other than the Company), or to which such sale,
lease, conveyance or other disposition or assignment shall
be made (collectively, the "Successor"), is a corporation
organized and existing under the laws of the United States
or any State thereof or the District of Columbia, and the
Successor assumes by supplemental indenture in a form
satisfactory to the Trustee all of the obligations of the
Company, under this Indenture and the Securities;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee prior to
the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel, each stating that
the proposed transaction and such supplemental indenture
comply with this Indenture.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger of the Company with or into any
Person, or any sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company or any assignment of the
obligations of the Company under this Indenture or the Securities in accordance
with Section 5.01, the Successor formed by such consolidation or into or with
which the Company is merged or to which such sale, lease, conveyance or other
disposition or assignment is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, under this Indenture and
the Securities with the same effect as if such Successor had been named as the
Company herein and the predecessor Company in the case of a sale, lease,
conveyance or other disposition or assignment, shall be released from all
obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of 30 days;
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(2) the Company defaults in the payment of the principal of or
premium, if any, on any Security when the same becomes due and
payable at Stated Maturity, upon acceleration or otherwise;
(3) the Company fails to comply with any of its other agreements
or covenants in, or provisions of, the Securities, or this Indenture
and such failure continues for the period and after the notice
specified in the last paragraph of this Section 6.01;
(4) any default shall occur which results in the acceleration of
the maturity of any Indebtedness of the Company or any Restricted
Subsidiary (other than the Securities) (provided that such
acceleration is not rescinded within a period of 10 days from the
occurrence of such acceleration) having an outstanding principal
amount of $10 million or more individually or, taken together with
all other such Indebtedness that has been so accelerated, in the
aggregate; or any default shall occur in the payment of any principal
or interest in respect of any Indebtedness of the Company or any
Restricted Subsidiary (other than the Securities) having an
outstanding principal amount of $10 million or more individually or,
taken together with all other such Indebtedness with respect to which
any such payment has not been made, in the aggregate and such default
shall be continuing for a period of 30 days without the Company or
such Restricted Subsidiary, as the case may be, effecting a cure of
such default;
(5) failure by the Company or any Restricted Subsidiary to pay
final, non-appealable judgments aggregating in excess of $10 million,
which judgments are not paid, discharged or stayed for a period of 60
days;
(6) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that remains unstayed and in effect for 60
days and that:
(a) is for relief against the Company or any Restricted
Subsidiary as debtor in an involuntary case,
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(b) appoints a Custodian of the Company or any Restricted
Subsidiary or a Custodian for all or substantially all of
the property of the Company or any Restricted Subsidiary,
or
(c) orders the liquidation of the Company or any Restricted
Subsidiary.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company or the Holders of at least 25% in principal amount
of the then outstanding Securities notify the Company, and the Trustee, of the
Default, and the Company does not cure the Default within 90 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (6) or (7) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Securities by notice to the Company and the Trustee, may
declare the principal of and premium, if any, and accrued and unpaid interest
on all then outstanding Securities to be due and payable immediately. Upon any
such declaration the amounts due and payable on the Securities, as determined
in accordance with the next succeeding paragraph, shall be due and payable
immediately. If an Event of Default specified in clause (6) or (7) of Section
6.01 occurs, such amounts shall ipso facto become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of, or
premium, if any, or interest on the Securities) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived.
In the event that the maturity of the Securities is accelerated
pursuant to this Section 6.02, 100% of the principal amount thereof shall
become due and payable plus accrued interest to the date of payment.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, or premium,
if any, or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
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remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the then outstanding Securities by notice to the Trustee
may waive an existing Default or Event of Default and its consequences
(including waivers obtained in connection with a tender offer or exchange offer
for Securities or a solicitation of consents in respect of Securities, provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms), except a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on
any Security. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it hereunder. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders, or
that may involve the Trustee in personal liability.
Section 6.06 Limitations on Suits.
Subject to Section 6.07, a Holder may pursue a remedy with respect to
this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60 day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
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A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, and premium, if
any, and interest on the Security, on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the amount of
principal, premium, if any, and interest remaining unpaid on the Securities,
and interest on overdue principal and premium, if any, and, to the extent
lawful, interest on overdue interest, and 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, 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 the Holders allowed in any judicial
proceedings relative to the Company or its creditors or properties and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due 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 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out of
the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Article.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in such exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(2) Except during the continuance of an Event of Default:
(a) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine such
certificates and opinions to determine whether or not they appear to
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (2) of
this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was grossly 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 6.05.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law. All money received by the Trustee shall, until applied
as herein provided, be held in trust for the payment of the principal of, and
premium, if any, and interest on the Securities.
Section 7.02 Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its choice 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.
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(3) The Trustee may act through agents and attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(6) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its grossly negligent action, grossly negligent
omission or its willful misconduct.
(7) The Trustee shall not be charged with knowledge of any Event of
Default under Section 6.01 (other than an Event of Default under Section
6.01(a) or (b) if the Trustee is also the Paying Agent with respect to the
Securities) hereof or the existence of any Subsidiary of the Company unless the
Trustee shall have received notice thereof in accordance with Section 10.02
hereof from the Company or a Holder.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, or any
of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or
upon the Company's direction under any provision hereof, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee and it shall not be responsible for any statement
or recital herein or any statement in the Securities other than its certificate
of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, or premium, if any, or
interest on any Security, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Trust Officers of the Trustee in good faith determines that
withholding the notice is in the interests of Holders.
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Section 7.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with January 31, 1998,
and in any event on or before April 1 in each year, the Trustee shall mail to
Holders a brief report dated as of such January 31 that complies with TIA
Section 313(a); provided, however, that if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted. The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company shall notify the Trustee when the Securities
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company agrees to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred or
made by it in accordance with any provision of this Indenture. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company agrees to
indemnify the Trustee against any loss, liability or expense incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of defending
itself against any claim of liability in connection with the exercise or
performance of any of its duties hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through gross
negligence or bad faith, as determined by a court of competent jurisdiction.
To secure the payment obligations of the Company in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Securities may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or
its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the obligations of the Company under Section
7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities, duties and responsibilities hereunder.
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In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated, with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers, shall be subject to supervision
or examination by Federal or State (or the District of Columbia) authority and
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a) (1), 310 (a) (2) and 310 (a) (5). The
Trustee is subject to and shall comply with the provisions of TIA Section 310(b)
during the period of time required by this Indenture. Nothing in this Indenture
shall prevent the Trustee from filing with the SEC the application referred to
in the penultimate paragraph of TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with the provisions of TIA
Section 311 (a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
(1) This Indenture shall cease to be of further effect (except that
the Company's obligations under Section 7.07 and the Trustee's and Paying
Agent's obligations under Section 8.03 shall survive), and the Trustee, on
demand and expense of the Company, shall execute proper instruments
acknowledging the satisfaction and discharge of this Indenture, when:
(a) either
(i) all outstanding Securities theretofore authenticated
and issued (other than destroyed, lost or stolen Securities that
have been replaced or paid) have been delivered to the Trustee
for cancellation; or
(ii) all outstanding Securities not theretofore delivered
to the Trustee for cancellation:
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(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) 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 (A), (B) or (C) above,
has deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of
clause (A)) in trust for the purpose an amount which,
together with earnings thereon, will be sufficient to pay and
discharge the entire indebtedness on such Securities for
principal, 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;
(b) the Company has paid of caused to be paid all other sums
payable by it hereunder; and
(c) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, together with an
Opinion of Counsel to the same effect.
(2) The Company may terminate all of its obligations under this
Indenture, except as provided below, if:
(a) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations sufficient to pay
principal of and interest on the Securities to maturity, and to pay
all other sums payable by it hereunder, provided that the Trustee
shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Securities as the same
shall become due;
(b) the Company delivers to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, and an Opinion of
Counsel to the same effect;
(c) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit; and
(d) the Company shall have delivered to the Trustee an
Opinion of Counsel from nationally recognized counsel acceptable to
the Trustee or a tax ruling to the effect that the Holders of the
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of the Company's exercise of its option under
this Section 8.01(2) and
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will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised.
In such event, this Indenture shall cease to be of further effect (except as
provided in the next succeeding paragraph), and the Trustee, on demand and
expense of the Company, shall execute proper instruments acknowledging
confirmation of and discharge under this Indenture.
However, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
2.10, 2.11, 4.01, 7.07, 7.08 and 8.04, and the Company's, the Trustee's and
Paying Agent's obligations in Section 8.03 shall survive until the Securities
are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.07 and the
Trustee's and Paying Agent's obligations in Section 8.03 shall survive.
After such irrevocable deposit made pursuant to this Section 8.01(2)
and satisfaction of the other conditions set forth herein, the Trustee upon
request and expense of the Company shall acknowledge in writing the discharge
of the Company's obligations under this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay principal of
or interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest on or before such payment date in such amounts as
will provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
Section 8.02 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and premium, if
any, and interest on the Securities.
Section 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any,
or interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period
shall have published such notice in a financial newspaper of widespread
circulation published in The City of New York. After payment to the Company,
Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
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Section 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the Company has made any payment
of principal of or premium, if any, or interest on any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS
Section 9.01 Without Consent of Holders.
The Company, and the Trustee may amend this Indenture or the
Securities or waive any provision hereof or thereof without the consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Sections 4.10 and 5.01;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA; or
(5) to make any change that does not adversely affect the rights
hereunder of any Holder in any material respect.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors (certified by the Secretary or an Assistant Secretary of the
Company) authorizing the execution of any such supplemental indenture, and upon
receipt by the Trustee of the documents described in Section 9.06, the Trustee
shall join with the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further
appropriate agreements and stipulations that may be therein contained. After an
amendment or waiver under this Section becomes effective, the Company shall
mail to the Holders of each Security affected thereby a notice briefly
describing the amendment or waiver. Any failure of the Company to mail such
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notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company, and the
Trustee may amend this Indenture or the Securities with the written consent
(including consents obtained in connection with a tender offer or exchange
offer for Securities or a solicitation of consents in respect of Securities,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities on equal terms) of the Holders of at least a
majority in principal amount of the then outstanding Securities.
Upon the request of the Company accompanied by a resolution of the
Board of Directors (certified by the Secretary or an Assistant Secretary of the
Company) authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities (including waivers obtained
in connection with a tender offer or exchange offer for Securities or a
solicitation of consents in respect of Securities, provided that in each case
such offer or solicitation is made to all Holders of then outstanding
Securities on equal terms). However, without the consent of each Holder
affected, an amendment or waiver under this Section may not:
(1) reduce the percentage in principal amount of outstanding
Securities whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the premium or other provisions with respect to
redemption under Section 3.07 or specified in the Securities;
(4) make any Security payable in money other than that stated in
the Security;
(5) impair the right to institute suit for the enforcement of
any payment of principal of, or premium, if any, or interest on any
Security pursuant to Sections 6.06 and 6.07, except as limited by
Section 6.06;
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(6) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or this sentence of
this Section 9.02; or
(7) waive a continuing Default or Event of Default in the
payment of principal of, or premium, if any, or interest on the
Securities.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of this Indenture.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply in
form and substance with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment (which includes any supplement) or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to his or her Security or
portion of a Security if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.13, or (ii) such other
date as the Company shall designate. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment or waiver or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless consents
from Holders of the principal amount of Securities required hereunder for such
amendment or waiver to be effective shall have also been given and not revoked
within such 90-day period.
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After an amendment or waiver becomes effective, it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (7) of
Section 9.02. In such case, the amendment or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company in exchange for
all Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 7.01, shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c) the imposed duties shall control.
Section 10.02 Notices.
Any notice or communication by the Company, or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
registered or certified mail (return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Newfield Exploration Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
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If to the Trustee:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by
the Registrar. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
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(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
complied with.
Section 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, 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 or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or the State of North Carolina, or at a
place of payment are authorized or obligated by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.08 No Recourse Against Others.
A director, officer, employee or stockholder of the Company, as such,
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
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Section 10.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 10.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its Successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.12 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 10.14 Trustee as Paying Agent and Registrar.
The Company initially appoints the Trustee as Paying Agent and
Registrar.
Section 10.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
49
52
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President - Planning
and Administration
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Assistant Vice President
50
53
EXHIBIT A
[FACE OF SECURITY]
NEWFIELD EXPLORATION COMPANY
7.45% SENIOR NOTE DUE 2007
CUSIP No. 651290 AA 6 $____________
Newfield Exploration Company, a Delaware corporation (the "Company"),
for value received promises to pay to ___________________ or registered
assigns, the principal sum of ________________________ Dollars [if the Security
is to be a Global Certificate, insert the following -- or such lesser amounts
as indicated on the schedule of exchanges of definitive Securities] on October
15, 2007.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
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.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and its corporate seal
to be affixed hereto or imprinted hereon.
Dated: October 15, 1997
[SEAL] NEWFIELD EXPLORATION COMPANY
By:
-----------------------------------
By:
-----------------------------------
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54
Certificate of Authentication:
First Union National Bank, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK
By:
-----------------------------------
Authorized Signature
[IF THE SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT THE FOLLOWING
-- THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
A-2
55
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NONU.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE
WITH REGULATION S, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
A-3
56
[REVERSE OF SECURITY]
NEWFIELD EXPLORATION COMPANY
7.45% SENIOR NOTE DUE 2007
1. INTEREST. Newfield Exploration Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
at 7.45% per annum from October 15, 1997 until maturity. The Company will pay
interest semiannually on April 15 and October 15 of each year (each an
"Interest Payment Date"), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Securities will accrue from the most
recent Interest Payment Date on which interest has been paid or, if no interest
has been paid, from October 15, 1997; provided, that if there is no existing
Default in the payment of interest, and if this Security is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
April 15, 1998. The Company shall pay interest on overdue principal and
premium, if any, from time to time on demand at a rate equal to the interest
rate then in effect; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Company will
pay the principal of, premium, if any, and interest on the Securities in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay such amounts
by check payable in such money. Payments in respect of the Securities evidenced
by a Global Certificate (including principal, premium, if any, and interest)
shall be made by wire transfer of immediately available funds to the accounts
specified by the Holder of the Global Certificate. In all other cases, payment
of interest may be made at the option of the Company by check to a Holder's
registered address.
3. RANKING. The Securities will be senior unsecured obligations of the
Company.
4. PAYING AGENT AND REGISTRAR. Initially, First Union National Bank,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice
to any Holder. The Company may act in any such capacity.
5. INDENTURE. The Company issued the Securities under an Indenture
dated as of October 15, 1997 (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date
of execution of the Indenture. The Securities are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Securities are unsecured general obligations of the Company limited
to $125,000,000 in aggregate principal amount.
A-4
57
6. OPTIONAL REDEMPTION. The Securities may be redeemed at any time, at
the option of the Company, in whole or from time to time in part, at a price
equal to 100% of their principal amount plus accrued and unpaid interest, if
any, to the Redemption Date plus the Make-Whole Premium, if any (the
"Redemption Price"). The amount of the Make-Whole Premium with respect to any
Security (or portion thereof) to be redeemed will be equal to the excess, if
any, of:
(i) the sum of the present values, calculated as of the
Redemption Date, of:
(A) each interest payment that, but for such redemption,
would have been payable on the Security (or portion
thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued
interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption,
would have been payable at the final maturity of the Security
(or portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof)
being redeemed.
The present values of interest and principal payments referred to in clause (a)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield plus 25 basis points. The
Make-Whole Premium will be calculated by an Independent Investment Banker (as
defined in the Indenture).
For purposes of determining the Make-Whole Premium, "Treasury Yield"
means a rate of interest per annum equal to the weekly average yield to
maturity of United States Treasury Notes that have a constant maturity that
corresponds to the remaining term to maturity of the Securities, calculated to
the nearest 1/12th of a year (the "Remaining Term"). The Treasury Yield will be
determined as of the third Business Day immediately preceding the applicable
Redemption Date. The weekly average yields of United States Treasury Notes will
be determined by reference to the most recent statistical release published by
the Federal Reserve Bank of New York and designated "H.15 (519) Selected
Interest Rates" or any successor release (the "H. I 5 Statistical Release"). If
the H.15 Statistical Release sets forth a weekly average yield for United
States Treasury Notes having a constant maturity that is the same as the
Remaining Term, then the Treasury Yield will be equal to such weekly average
yield. In all other cases, the Treasury Yield will be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have
a constant maturity closest to and less than the Remaining Term (in each case
as set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation will be rounded to the nearest 1/100th of 1%, with
any figure of 1/200% or Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield will be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
A-5
58
Periodic interest installments with respect to which the Interest
Payment Date is on or prior to any Redemption Date will be payable to the
Holders of record at the close of business on the relevant record dates
referred to herein, all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $ 1,000 may
be redeemed in part but only in whole multiples of $1,000. On and after the
Redemption Date interest will cease to accrue on Securities or on the portions
thereof called for redemption, as the case may be.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities originally issued
are in the form of a permanent Global Certificate. Under certain circumstances
described in the Indenture, the Securities may also be issued in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not exchange or register the transfer of
any Security or portion of a Security selected for redemption. Also, it need
not exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security shall be
treated as its owner for all purposes.
9. AMENDMENTS AND WAIVERS. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Securities, and any existing Default under, or compliance
with any provision of, the Indenture may be waived (other than any continuing
Default or Event of Default in the payment of the principal of or premium, if
any, or interest on the Securities) by the Holders of at least a majority in
principal amount of the Securities then outstanding in accordance with the
terms of the Indenture. Without the consent of any Holder, the Company, and the
Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency; to provide for uncertificated
Securities in addition to or in place of certificated Securities; to provide
for the assumption of the obligations of the Company under the Indenture to
Holders in the case of the merger, consolidation or sale or other disposition
of all or substantially all of the assets of the Company; to make any change
that does not materially adversely affect the rights of any Holder; or to
comply with the qualification of the Indenture under the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of the Indenture.
A-6
59
Without the consent of each Holder affected, the Company may not (i)
reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver, (ii) reduce the rate of or change the time for payment of
interest, including default interest, on any Security, (iii) reduce the
principal of or change the fixed maturity of any Security or alter the premium
or other provisions with respect to redemption, (iv) make any Security payable
in money other than that stated in the Security, (v) impair the right to
institute suit for the enforcement of any payment of principal of, or premium,
if any, or interest on, any Security (except as provided in the Indenture),
(vi) make any change in the percentage of principal amount of Securities
necessary to waive compliance with certain provisions of the Indenture or (vii)
waive a continuing Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Securities.
10. DEFAULTS AND REMEDIES. Events of Default include: default in
payment of interest on the Securities for 30 days; default in payment of
principal of or premium, if any, on the Securities; failure by the Company for
90 days after written notice by the Trustee or by the Holders of at least 25%
of the aggregate principal amount of the Securities then outstanding to it to
comply with any of its other covenants or agreements in the Indenture or the
Securities; the acceleration of the maturity of any Indebtedness of the Company
or any Restricted Subsidiary (other than the Securities) (provided that such
acceleration is not rescinded within a period of 10 days from the occurrence of
such acceleration) that has an outstanding principal amount of $10 million or
more individually or in the aggregate; a default in the payment of principal or
interest in respect of any Indebtedness of the Company or any Restricted
Subsidiary (other than the Securities) having an outstanding principal amount
of $10 million or more individually or in the aggregate, and such default shall
be continuing for a period of 30 days without the Company or such Restricted
Subsidiary, as the case may be, effecting a cure of such default; failure by
the Company or any Restricted Subsidiary to pay final, non-appealable judgments
aggregating in excess of $10 million, which judgments are not paid, discharged
or stayed for a period of 60 days; or certain events involving bankruptcy,
insolvency or reorganization of the Company or any Restricted Subsidiary. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Securities may declare
the principal of, and premium, if any, and interest on all the Securities to be
immediately due and payable, except that in the case of an Event of Default
arising from certain events of bankruptcy, insolvency or reorganization of the
Company or any Restricted Subsidiary, all outstanding Securities become due and
payable immediately without further action or notice. The amount due and
payable upon the acceleration of any Security is equal to 100% of the principal
amount thereof plus accrued interest to the date of payment. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
▇-▇
▇▇
▇▇. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Securities.
13. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
Newfield Exploration Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
15. RESTRICTIONS ON TRANSFER. By its acceptance of any Security
bearing a legend restricting transfer, each Holder of such a Security
acknowledges the restrictions on transfer of such Security set forth in the
Indenture in respect of the Securities and such legend and agrees that it will
transfer such Security only as provided in the Indenture.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Indenture.
A-8
61
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITY
The following exchanges of a part of this Global Certificate for Definitive
Securities have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Certificate following authorized officer
Principal Amount Principal Amount such decrease of Trustee or
Date of Exchange of this Global Certificate of this Global Certificate (or increase) Security Custodian
---------------- -------------------------- -------------------------- --------------------- ------------------
A-9
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably
appoint------------------------------------------------------------ as agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date:
--------------------------------------------------------------------------
Your Signature:
(Sign exactly as your name appears on the face of this Security)
-------------------------------------------------------------------------------
Signature Guarantee:
(Participant in a Recognized Signature or Medallion Program)
63
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 7.45% Senior Notes Due 2007 of Newfield Exploration Company
This Certificate relates to $_____ principal amount of Securities held
in *______ book-entry or *______ definitive form by _____________________ (the
"Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Certificate held by the Depositary a
Security or Securities in definitive, registered form equal to its beneficial
interest in such Global Certificate (or the portion thereof indicated above);
or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relative to the above captioned Securities and the terms thereof and
that the transfer of this Security does not require registration under the
Securities Act (as defined below) because:*
[ ] Such Security is being transferred to Newfield Exploration Company.
[ ] Such Security is being acquired for the Transferor's own account
without transfer.
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")), in compliance with Rule 144A under the Securities Act.
[ ] Such Security is being transferred pursuant to an exemption from
registration in accordance with Rule 904 under the Securities Act (and based on
an opinion of counsel if the Company so requests).
[ ] Such Security is being transferred in accordance with Rule 144 under
the Securities Act (and based on an opinion of counsel if the Company so
requests).
[ ] Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
--------------------
* Check applicable box.
AA-1
64
[ ] Such Security is being transferred to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring such Security for its own account or for the
account of such an institutional accredited investor for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act.
[ ] Such Security is being transferred in reliance on and in compliance
with another exemption from the registration requirements of the Securities Act
(and based on an opinion of counsel if the Company so requests).
The undersigned confirms that it has not used any general solicitation
or general advertising in connection with the transfer.
-----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
--------------------------------
Name:
Title:
Address:
Date:
----------------------
QUALIFIED INSTITUTIONAL BUYER CERTIFICATION
TO BE COMPLETED BY PURCHASER IF TRANSFER IS TO A "QUALIFIED INSTITUTIONAL
BUYER"
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
-----------------------------------
[INSERT NAME OF TRANSFEROR]
Date:
----------------------
AA-2
65
EXHIBIT B
FORM OF TRANSFEREE LETTER OF REPRESENTATION
TO BE DELIVERED BY INSTITUTIONAL ACCREDITED INVESTORS
Newfield Exploration Company
c/o First Union National Bank, as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
In connection with the proposed transfer to us of $___________
aggregate principal amount of the 7.45% Senior Notes Due 2007 (the "Notes") of
NEWFIELD EXPLORATION COMPANY, a Delaware corporation (the "Company"), we
confirm that:
1. We understand that the Notes of the Company have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws, and may not be offered or sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing the Notes that, if, prior
to the date which is two years after the later of the date of original issue of
the Notes and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (the "Resale Restriction Termination
Date"), we decide to offer, sell or otherwise transfer any such Notes, such
offer, sale or transfer will be made only (a) to the Company, (b) pursuant to
an effective registration statement under the Securities Act, (c) so long as
the Notes are eligible for resale pursuant to Rule 144A under the Securities
Act, to a person we reasonably believe is a qualified institutional buyer under
Rule 144A (a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that
is acquiring Notes for its own account or for the account of such an
institutional accredited investor for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, (e) pursuant to offers and sales to non-U.S.
persons that occur outside the United States within the meaning of Regulation S
under the Securities Act and otherwise comply with Regulation S under the
Securities Act or (f) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and to compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (d) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Trustee, which shall
provide as applicable, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring such
Notes for investment purposes and not for distribution in
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violation of the Securities Act. We acknowledge on our behalf and on behalf of
any investor account for which we are purchasing Notes that the Company and the
Trustee reserve the right prior to any offer, sale or other transfer pursuant
to clause (d), (e) or (f) prior to the Resale Restriction Termination Date of
the Notes to require the delivery of any opinion of counsel, certifications
and/or other information satisfactory to the Company and the Trustee. We
understand that the certificates for any Notes that we receive will bear a
legend substantially to the effect of the foregoing.
2. We are an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any account for
which we are acting are each able to bear the economic risks of our or its
investment.
3. We are acquiring the Notes purchased by us for our own account (or
for one or more accounts as to each of which we exercise sole investment
discretion and have authority to make, and do make, the statements contained in
this letter) and not with a view to any distribution of the Notes, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.
4. We acknowledge that the Company, the Trustee and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements.
Very truly yours,
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
Date:
---------------------------
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
---------------------------------------------------------------------------
Address:
------------------------------------------------------------------------
Taxpayer ID Number:
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
Newfield Exploration Company
c/o First Union National Bank, as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
In connection with the proposed transfer by us of $_______________
aggregate principal amount of the 7.45% Senior Notes Due 2007 (the "Notes") of
NEWFIELD EXPLORATION COMPANY, a Delaware corporation (the "Company"), we
confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended, and, accordingly, we
represent that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(iii) no directed selling efforts have been made by us, any affiliate
of ours, or any Person acting on our behalf, in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the U.S. Securities Act of 1933, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S under the U.S. Securities Act of 1933,
as amended.
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Very truly yours,
-----------------------------
(Name of Transferor)
By:
--------------------------
Name:
Title:
Address:
Date:
---------------------
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