EXHIBIT 4.1
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VINTAGE PETROLEUM, INC.
TO
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of , 1997
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CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
(S) 310(a)(1) ...................................... 609
(a)(2) ...................................... 609
(a)(3) ...................................... Not Applicable
(a)(4) ...................................... Not Applicable
(b) ...................................... 608
610
(S) 311(a) ...................................... 613
(b) ...................................... 613
(S) 312(a) ...................................... 701
702
(b) ...................................... 702
(c) ...................................... 702
(S) 313(a) ...................................... 703
(b) ...................................... 703
(c) ...................................... 703
(d) ...................................... 703
(S) 314(a) ...................................... 704
(a)(4) ...................................... 101
1004
(b) ...................................... Not Applicable
(c)(1) ...................................... 102
(c)(2) ...................................... 102
(c)(3) ...................................... Not Applicable
(d) ...................................... Not Applicable
(e) ...................................... 102
(S) 315(a) ...................................... 601
(b) ...................................... 602
(c) ...................................... 601
(d) ...................................... 601
(e) ...................................... 514
(S) 316(a) ...................................... 101
(a)(1)(A)...................................... 502
512
(a)(1)(B)...................................... 513
(a)(2) ...................................... Not Applicable
(b) ...................................... 508
(c) ...................................... 104
(S) 317(a)(1) ...................................... 503
(a)(2) ...................................... 504
(b) ...................................... 1003
(S) 318(a) ...................................... 107
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions......................................................................... 1
Act.......................................................................... 1
Additional Assets............................................................ 2
Adjusted Consolidated Net Tangible Assets.................................... 2
Affiliate.................................................................... 3
Asset Sale................................................................... 3
Authenticating Agent......................................................... 4
Average Life................................................................. 4
Bank Credit Facilities....................................................... 4
Board of Directors........................................................... 4
Board Resolution............................................................. 5
Business Day................................................................. 5
Capital Lease Obligation..................................................... 5
Capital Stock................................................................ 5
Change of Control............................................................ 5
Change of Control Offer...................................................... 6
Change of Control Payment Date............................................... 6
Commission................................................................... 6
Company...................................................................... 6
Company Request or Company Order............................................. 6
Consolidated Interest Coverage Ratio......................................... 6
Consolidated Interest Expense................................................ 7
Consolidated Net Income...................................................... 7
Consolidated Net Worth....................................................... 8
Corporate Trust Office....................................................... 8
corporation.................................................................. 8
Covenant Defeasance.......................................................... 8
CUSIP Number................................................................. 8
Default...................................................................... 8
Defaulted Interest........................................................... 8
Defeasance................................................................... 9
Depositary................................................................... 9
Designated Senior Indebtedness............................................... 9
Dollar-Denominated Production Payments....................................... 9
EBITDA....................................................................... 9
Event of Default............................................................. 9
Excess Proceeds.............................................................. 9
Exchange Act................................................................. 10
Exchanged Properties......................................................... 10
Exchange Rate Contract....................................................... 10
Expiration Date.............................................................. 10
Expiry Date.................................................................. 10
Fair Market Value............................................................ 10
Foreign Subsidiary........................................................... 10
Global Security.............................................................. 10
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Guarantee.................................................................... 10
Hedging Agreements........................................................... 11
Holder....................................................................... 11
Incur........................................................................ 11
Indebtedness................................................................. 11
Indenture.................................................................... 12
Interest Payment Date........................................................ 12
Interest Rate Protection Agreement........................................... 12
Investment................................................................... 12
Issue Date................................................................... 13
Investment Company Act....................................................... 13
Legal Holiday................................................................ 13
Lien......................................................................... 13
Liquid Securities............................................................ 13
Maturity..................................................................... 13
Material Change.............................................................. 13
Moody's...................................................................... 14
Net Available Cash........................................................... 14
Net Working Capital.......................................................... 14
9% Indenture................................................................. 15
9% Notes..................................................................... 15
Notice of Default............................................................ 15
Officers' Certificate........................................................ 15
Oil and Gas Business......................................................... 15
Oil and Gas Liens............................................................ 15
Oil and Gas Purchase and Sale Contract....................................... 16
Opinion of Counsel........................................................... 16
Outstanding.................................................................. 16
paid in full or payment in full.............................................. 17
pari passu................................................................... 17
Pari Passu Indebtedness...................................................... 17
Participants................................................................. 17
pay the Securities........................................................... 17
Paying Agent................................................................. 17
Payment Blockage Notice...................................................... 17
Payment Blockage Period...................................................... 17
Permitted Business Investments............................................... 17
Permitted Designee........................................................... 18
Permitted Holders............................................................ 18
Permitted Indebtedness....................................................... 18
Permitted Investments........................................................ 19
Permitted Liens.............................................................. 20
Permitted Short-Term Investments............................................. 20
Person....................................................................... 21
Predecessor Security......................................................... 21
Preferred Stock.............................................................. 21
Prepayment Offer............................................................. 21
Prepayment Offer Notice...................................................... 21
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primary obligor.............................................................. 23
Production Payments and Reserve Sales........................................ 23
Property..................................................................... 23
Purchase Amount.............................................................. 23
Purchase Date................................................................ 23
Purchase Price............................................................... 23
Redeemable Stock............................................................. 23
Redemption Date.............................................................. 24
Redemption Price............................................................. 24
Registrar.................................................................... 24
Regular Record Date.......................................................... 24
Remaining Excess Proceeds.................................................... 24
Representative............................................................... 24
Restricted Payment........................................................... 24
Restricted Subsidiary........................................................ 25
Sale and Leaseback Transaction............................................... 25
Securities................................................................... 25
Securities Act............................................................... 25
Security Register and Security Registrar..................................... 25
Senior Indebtedness.......................................................... 25
Special Record Date.......................................................... 26
S&P.......................................................................... 26
Stated Maturity.............................................................. 26
Subsidiary................................................................... 26
Surviving Entity............................................................. 26
Transaction Date............................................................. 26
Trust Indenture Act.......................................................... 26
Trust Officer................................................................ 26
Trustee...................................................................... 26
Unrestricted Subsidiary...................................................... 26
U.S. GAAP.................................................................... 27
U.S. Government Obligation................................................... 27
Vice President............................................................... 27
Volumetric Production Payments............................................... 27
Voting Redeemable Stock...................................................... 27
Voting Stock................................................................. 27
Wholly Owned Subsidiary...................................................... 27
SECTION 102. Compliance Certificates and Opinions................................................ 28
SECTION 103. Form of Documents Delivered to Trustee.............................................. 28
SECTION 104. Acts of Holders; Record Dates....................................................... 29
SECTION 105. Notices, Etc., to Trustee and Company............................................... 31
SECTION 106. Notice to Holders; Waiver........................................................... 32
SECTION 107. Conflict with Trust Indenture Act................................................... 32
SECTION 108. Effect of Headings, Table of Contents and Cross-Reference Sheet..................... 32
SECTION 109. Successors and Assigns.............................................................. 33
SECTION 110. Separability Clause................................................................. 33
SECTION 111. Benefits of Indenture............................................................... 33
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SECTION 112. Governing Law....................................................................... 33
SECTION 113. Legal Holidays...................................................................... 33
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Securities.................................................................. 34
SECTION 202. Form of Face of Global Security..................................................... 34
SECTION 203. Form of Reverse of Global Security.................................................. 36
SECTION 204. Form of Trustee's Certificate of Authentication..................................... 39
ARTICLE THREE
THE SECURITIES
SECTION 301. Denominations....................................................................... 39
SECTION 302. Execution, Authentication, Delivery and Dating...................................... 39
SECTION 303. Temporary Securities................................................................ 40
SECTION 304. Registration, Registration of Transfer and Exchange................................. 41
SECTION 305. Mutilated, Destroyed, Lost and Stolen Securities.................................... 43
SECTION 306. Payment of Interest; Interest Rights Preserved...................................... 44
SECTION 307. Persons Deemed Owners............................................................... 45
SECTION 308. Cancellation........................................................................ 46
SECTION 309. Computation of Interest............................................................. 46
SECTION 310. CUSIP Numbers....................................................................... 46
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................................. 47
SECTION 402. Application of Trust Money.......................................................... 48
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................................................... 48
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................. 50
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..................... 51
SECTION 504. Trustee May File Proofs of Claim.................................................... 52
SECTION 505. Trustee May Enforce Claims Without Possession of Securities......................... 52
SECTION 506. Application of Money Collected...................................................... 53
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SECTION 507. Limitation on Suits................................................................. 53
SECTION 508. Unconditional Right of Holders To Receive Principal, Premium and Interest........... 54
SECTION 509. Restoration of Rights and Remedies.................................................. 54
SECTION 510. Rights and Remedies Cumulative...................................................... 54
SECTION 511. Delay or Omission Not Waiver........................................................ 55
SECTION 512. Control by Holders.................................................................. 55
SECTION 513. Waiver of Past Defaults............................................................. 55
SECTION 514. Undertaking for Costs............................................................... 56
SECTION 515. Waiver of Usury, Stay or Extension Laws............................................. 56
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................. 56
SECTION 602. Notice of Defaults.................................................................. 57
SECTION 603. Certain Rights of Trustee........................................................... 57
SECTION 604. Trustee's Disclaimer................................................................ 58
SECTION 605. May Hold Securities................................................................. 58
SECTION 606. Money Held in Trust................................................................. 58
SECTION 607. Compensation and Reimbursement...................................................... 59
SECTION 608. Conflicting Interests............................................................... 59
SECTION 609. Corporate Trustee Required; Eligibility............................................. 60
SECTION 610. Resignation and Removal; Appointment of Successor................................... 60
SECTION 611. Acceptance of Appointment by Successor.............................................. 61
SECTION 612. Merger, Conversion, Consolidation or Succession to Business......................... 62
SECTION 613. Preferential Collection of Claims Against Company................................... 62
SECTION 614. Appointment of Authenticating Agent................................................. 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Company To Furnish Trustee Names and Addresses of Holders........................... 64
SECTION 702. Preservation of Information; Communications to Holders.............................. 65
SECTION 703. Reports by Trustee.................................................................. 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms................................ 66
SECTION 802. Successor Substituted............................................................... 67
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders................................. 67
SECTION 902. Supplemental Indentures with Consent of Holders.................................... 68
SECTION 903. Execution of Supplemental Indentures............................................... 70
SECTION 904. Effect of Supplemental Indentures.................................................. 70
SECTION 905. Conformity with Trust Indenture Act................................................ 70
SECTION 906. Reference in Securities to Supplemental Indentures................................. 70
SECTION 907. Payment for Consent................................................................ 70
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest......................................... 71
SECTION 1002. Registrar and Paying Agent......................................................... 71
SECTION 1003. Money for Securities Payments To Be Held in Trust.................................. 72
SECTION 1004. Statement by Officers as to Default................................................ 73
SECTION 1005. Existence.......................................................................... 73
SECTION 1006. Maintenance of Properties.......................................................... 73
SECTION 1007. Payment of Taxes and Other Claims.................................................. 74
SECTION 1008. Limitation on Indebtedness......................................................... 74
SECTION 1009. Limitation on Liens................................................................ 74
SECTION 1010. Limitation on Restricted Payments.................................................. 76
SECTION 1011. Limitation on Issuance and Sale of Capital Stock of Restricted Subsidiaries........ 77
SECTION 1012. Limitation on Asset Sales.......................................................... 78
SECTION 1013. Incurrence of Layered Indebtedness................................................. 80
SECTION 1014. Transactions with Affiliates....................................................... 80
SECTION 1015. Limitation on Restrictions on Distributions from Restricted Subsidiaries........... 81
SECTION 1016. Restricted and Unrestricted Subsidiaries........................................... 82
SECTION 1017. Commission Reports................................................................. 83
SECTION 1018. Waiver of Certain Covenants........................................................ 83
SECTION 1019. Mandatory Repurchase Upon a Change of Control...................................... 83
SECTION 1020. Further Instruments and Acts....................................................... 85
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Election To Redeem; Notice to Trustee.............................................. 85
SECTION 1102. Selection by Trustee of Securities To Be Redeemed.................................. 85
SECTION 1103. Notice of Redemption............................................................... 86
SECTION 1104. Deposit of Redemption Price........................................................ 87
SECTION 1105. Securities Payable on Redemption Date.............................................. 87
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SECTION 1106. Securities Redeemed in Part........................................................ 88
SECTION 1107. Purchase of Securities............................................................. 88
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Defeasance and Discharge........................................................... 88
SECTION 1202. Covenant Defeasance................................................................ 89
SECTION 1203. Conditions to Defeasance or Covenant Defeasance.................................... 89
SECTION 1204. Deposited Money and U.S. Government Obligations To Be Held in Trust;
Miscellaneous Provisions..................................................... 91
SECTION 1205. Reinstatement...................................................................... 92
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Agreement to Subordinate........................................................... 92
SECTION 1302. Liquidation, Dissolution and Bankruptcy............................................ 92
SECTION 1303. Default on Senior Indebtedness..................................................... 93
SECTION 1304. Acceleration of Payment of Securities.............................................. 94
SECTION 1305. When Distribution Must Be Paid Over................................................ 94
SECTION 1306. Subrogation........................................................................ 94
SECTION 1307. Relative Rights.................................................................... 95
SECTION 1308. Subordination May Not Be Impaired by Company....................................... 95
SECTION 1309. Rights of Trustee and Paying Agent................................................. 95
SECTION 1310. Distribution or Notice to Representative........................................... 95
SECTION 1311. Trust Moneys Not Subordinated...................................................... 95
SECTION 1312. Trustee Entitled To Rely........................................................... 96
SECTION 1313. Trustee To Effectuate Subordination................................................ 96
SECTION 1314. Trustee Not Fiduciary for Holders of Senior Indebtedness........................... 97
SECTION 1315. Reliance by Holders of Senior Indebtedness on Subordination Provisions............. 97
SECTION 1316. Proofs of Claim.................................................................... 97
SECTION 1317. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights............................................................. 97
SECTION 1318. Article Applicable to Paying Agents................................................ 98
SECTION 1319. Defeasance of this Article Thirteen................................................ 98
ARTICLE FOURTEEN
CONCERNING THE HOLDERS
SECTION 1401. Identification of Company-Owned Securities......................................... 98
SECTION 1402. Revocation of Consents............................................................. 98
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ARTICLE FIFTEEN
HOLDERS' MEETINGS
SECTION 1501. Purposes of Meetings.............................................................. 99
SECTION 1502. Call of Meetings by Trustee....................................................... 99
SECTION 1503. Call of Meetings by Company or Holders............................................ 100
SECTION 1504. Qualifications for Voting......................................................... 100
SECTION 1505. Regulations....................................................................... 100
SECTION 1506. Voting............................................................................ 102
SECTION 1507. No Delay of Rights by Meeting..................................................... 102
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Indenture and Securities Solely Corporate Obligations............................. 103
SECTION 1602. Execution in Counterparts......................................................... 103
TESTIMONIUM..................................................................................... 104
SIGNATURE AND SEALS............................................................................. 104
ACKNOWLEDGMENT...............................................................................105,106
viii
INDENTURE, dated as of , 1997, between VINTAGE
PETROLEUM, INC., a Delaware corporation (herein called the "Company"), having
its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and THE CHASE
MANHATTAN BANK, a New York banking corporation, as Trustee (herein called 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 [ ]% Senior
Subordinated Notes Due 2009 (the "Securities").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with U.S. GAAP; provided, however, that for the
avoidance of any possible doubt, any act or condition in accordance herewith
and permitted hereunder when taken, created or occurring shall not become a
violation of any provision of this Indenture as a result of a subsequent
change in U.S. GAAP;
(4) any reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(6) all dollar amounts are expressed in United States dollars.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
2
"Additional Assets" means (i) any property (other than cash, cash
equivalents or securities) used in any business in which the Company or any
Restricted Subsidiary is engaged as of the date of the Indenture or any business
ancillary thereto, (ii) Investments in any other Person engaged in the Oil and
Gas Business or any business ancillary thereto (including the acquisition from
third parties of Capital Stock of such Person) as a result of which such other
Person becomes a Restricted Subsidiary in compliance with Section 1016), (iii)
the acquisition from third parties of Capital Stock of a Restricted Subsidiary,
(iv) the costs of acquiring, exploiting, developing and exploring in respect of
oil and gas properties or (v) Permitted Business Investments.
"Adjusted Consolidated Net Tangible Assets" means (without duplication), as
of the date of determination, (a) the sum of (i) discounted future net revenues
from proved oil and gas reserves of the Company and its Restricted Subsidiaries
calculated in accordance with Commission guidelines before any state, federal or
foreign income taxes, as estimated by a nationally recognized firm of
independent petroleum engineers in a reserve report prepared as of the end of
the Company's most recently completed fiscal year for which financial statements
are available, as increased by, as of the date of determination, the estimated
discounted future net revenues from (A) estimated proved oil and gas reserves
acquired since the date of such year-end reserve report, and (B) estimated oil
and gas reserves attributable to upward revisions of estimates of proved oil and
gas reserves since the date of such year-end reserve report due to exploration,
development or exploitation activities, in each case calculated in accordance
with Commission guidelines (utilizing the prices utilized in such year-end
reserve report), and decreased by, as of the date of determination, the
estimated discounted future net revenues from (C) estimated proved oil and gas
reserves produced or disposed of since the date of such year-end reserve report
and (D) estimated oil and gas reserves attributable to downward revisions of
estimates of proved oil and gas reserves since the date of such year-end reserve
report due to changes in geological conditions or other factors which would, in
accordance with standard industry practice, cause such revisions, in each case
calculated in accordance with Commission guidelines (utilizing the prices
utilized in such year-end reserve report); provided that, in the case of each of
the determinations made pursuant to clauses (A) through (D), such increases and
decreases shall be as estimated by the Company's petroleum engineers, unless in
the event that there is a Material Change as a result of such acquisitions,
dispositions or revisions, then the discounted future net revenues utilized for
purposes of this clause (a)(i) shall be confirmed in writing by a nationally
recognized firm of independent petroleum engineers, (ii) the capitalized costs
that are attributable to oil and gas properties of the Company and its
Restricted Subsidiaries to which no proved oil and gas reserves are
attributable, based on the Company's books and records as of a date no earlier
than the date of the Company's latest annual or quarterly financial statements,
(iii) the Net Working Capital on a date no earlier than the date of the
Company's latest annual or quarterly financial statements and (iv) the greater
of (i) the net book value on a date no earlier than the date of the Company's
latest annual or quarterly financial statements or (ii) the
3
appraised value, as estimated by independent appraisers, of other tangible
assets (including, without duplication, Investments in unconsolidated Restricted
Subsidiaries) of the Company and its Restricted Subsidiaries, as of the date no
earlier than the date of the Company's latest audited financial statements,
minus (b) the sum of (i) minority interests, (ii) any gas balancing liabilities
of the Company and its Restricted Subsidiaries reflected in the Company's latest
audited financial statements, (iii) to the extent included in (a)(i) above, the
discounted future net revenues, calculated in accordance with Commission
guidelines (utilizing the prices utilized in the Company's year-end reserve
report), attributable to reserves which are required to be delivered to third
parties to fully satisfy the obligations of the Company and its Restricted
Subsidiaries with respect to Volumetric Production Payments on the schedules
specified with respect thereto and (iv) the discounted future net revenues,
calculated in accordance with Commission guidelines, attributable to reserves
subject to Dollar-Denominated Production Payments which, based on the estimates
of production and price assumptions included in determining the discounted
future net revenues specified in (a)(i) above, would be necessary to fully
satisfy the payment obligations of the Company and its Restricted Subsidiaries
with respect to Dollar-Denominated Production Payments on the schedules
specified with respect thereto. If the Company changes its method of accounting
from the full cost method to the successful efforts method or a similar method
of accounting, "Adjusted Consolidated Net Tangible Assets" will continue to be
calculated as if the Company were still using the full cost method of
accounting.
"Affiliate" of any specified Person means any other Person (i) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person or (ii)
which beneficially owns or holds directly or indirectly 10% or more of any class
of the Voting Stock of such specified Person or of any Subsidiary of such
specified Person. For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person directly or indirectly, whether through the ownership of
Voting Stock, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Sale" means, with respect to any Person, any transfer, conveyance,
sale, lease or other disposition (including, without limitation, dispositions
pursuant to any consolidation or merger) by such Person or any of its Restricted
Subsidiaries in any single transaction or series of transactions of (a) shares
of Capital Stock or other ownership interests of another Person (including
Capital Stock of Unrestricted Subsidiaries) or (b) any other Property of such
Person or any of its Restricted Subsidiaries; provided, however, that the term
"Asset Sale" shall not include: (i) the sale or transfer of Permitted Short-Term
Investments, inventory, accounts receivable or other Property in the ordinary
course of business; (ii) the liquidation of Property received in settlement of
debts owing to the Company or any Restricted Subsidiary as a result of
foreclosure, perfection or enforcement of any Lien or debt, which debts were
owing to the Company or any Restricted Subsidiary in the ordinary course of
4
business of the Company or such Restricted Subsidiary; (iii) when used with
respect to the Company, any asset disposition permitted pursuant to Section 801
which constitutes a disposition of all or substantially all of the Company's
assets; (iv) the sale or transfer of any Property by the Company or a Restricted
Subsidiary to the Company or a Restricted Subsidiary; or (v) the sale or
transfer of any asset with a Fair Market Value of less than $1 million.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate the Securities.
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal or liquidation value payment of
such Indebtedness or Preferred Stock, respectively, and the amount of such
principal or liquidation value payment, by (ii) the sum of all such principal or
liquidation value payments, provided, however, that in the case of any
Indebtedness in respect of a revolving credit facility, the payment date shall
be deemed to be the later of (x) the date of expiration of such facility or, if
there is any interim reduction in the availability of credit thereunder, the
date of such reduction to the extent of such reduction and (y) the scheduled
repayment date in respect of such Indebtedness.
"Bank Credit Facilities" means, with respect to any Person, one or more
debt facilities or commercial paper facilities with banks or other institutional
lenders (including, without limitation, the credit facility pursuant to the
Credit Agreement, dated August 29, 1996, as amended, among the Company and
certain banks) providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or trade letters of credit. Notwithstanding the foregoing, for
purposes of determining whether Indebtedness under Bank Credit Facilities
constitutes Permitted Indebtedness and only for such purposes, Indebtedness
Incurred in reliance on clause (a) of Section 1008 shall not be deemed to
constitute Indebtedness Incurred in reliance on the exception provided by clause
(b) or clause (l) of the definition of Permitted Indebtedness. Notwithstanding
any of the foregoing, Bank Credit Facilities shall not include (i) the
Refinancing Agreement dated May 19, 1995 between Cadipsa S.A. and Banco Medefin
S.A., Banco Mercantil Argentino S.A. and ABN AmroBank, or (ii) the Amended and
Restated Investment Agreement dated April 28, 1994, as amended, between the
International Finance Corporation and Cadipsa S.A. Notwithstanding anything to
the contrary herein, the principal amount outstanding on the Issue Date under
Bank Credit Facilities, together with accrued and unpaid interest thereon (if
any) on the Issue Date, shall be Senior Indebtedness for purposes of this
Indenture.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
5
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day that is not a Legal Holiday.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other arrangement conveying the
right to use) real or personal property of such Person which is required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with U.S. GAAP. For purposes of
Section 1009, a Capital Lease Obligation shall be deemed to be secured by a Lien
on the property being leased.
"Capital Stock" in any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person and any rights (other than debt securities convertible into an
equity interest), warrants or options to subscribe for or to acquire an equity
interest in such Person; provided, however, that "Capital Stock" shall not
include Redeemable Stock.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (within the meaning of Sections 13(d)(3) and
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than any one or more of the Permitted Holders, becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
of 50% or more of the total voting power of all classes of the Voting Stock of
the Company and/or warrants or options to acquire such Voting Stock, calculated
on a fully diluted basis; (ii) the sale, lease, conveyance or transfer of all or
substantially all of the assets of the Company (other than to any Wholly Owned
Subsidiary) shall have occurred; (iii) the stockholders of the Company shall
have approved any plan of liquidation or dissolution of the Company; (iv) the
Company consolidates with or merges into another Person or any Person
consolidates with or merges into the Company in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is reclassified
into or exchanged for cash, securities or other property, other than any such
transaction where (a) the outstanding Voting Stock of the Company is
reclassified into or exchanged for Voting Stock of the surviving corporation
that is Capital Stock and (b) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
a majority of the Voting Stock of the surviving corporation immediately after
such transaction in substantially the same proportion as before the transaction;
or (v) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Company's Board of Directors (together
with any new directors whose election or appointment by such board or whose
nomination for election by the stockholders of the Company was approved by a
vote of a majority of the directors
6
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Company's Board of Directors then
in office.
"Change of Control Offer" has the meaning specified in Section 1019.
"Change of Control Payment Date" has the meaning specified in Section 1019.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Interest Coverage Ratio" means, as of the date of the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio (the "Transaction Date"), the ratio of (i) the aggregate amount
of EBITDA of the Company and its consolidated Restricted Subsidiaries for the
four full fiscal quarters immediately prior to the Transaction Date for which
financial statements are available to (ii) the aggregate Consolidated Interest
Expense of the Company and its Restricted Subsidiaries that is anticipated to
accrue during a period consisting of the fiscal quarter in which the Transaction
Date occurs and the three fiscal quarters immediately subsequent thereto (based
upon the pro forma amount and maturity of, and interest payments in respect of,
Indebtedness of the Company and its Restricted Subsidiaries expected by the
Company to be outstanding on the Transaction Date), assuming for the purposes of
this measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date; provided, that if the Company or any of its Restricted
Subsidiaries is a party to any Interest Rate Protection Agreement which would
have the effect of changing the interest rate on any Indebtedness of the Company
or any of its Restricted Subsidiaries for such four quarter period (or a portion
thereof), the resulting rate shall be used for such four quarter period or
portion thereof; provided further that any Consolidated Interest Expense with
respect to Indebtedness Incurred or retired by the Company or any of its
Restricted Subsidiaries during the fiscal quarter in which the
7
Transaction Date occurs shall be calculated as if such Indebtedness was so
Incurred or retired on the first day of the fiscal quarter in which the
Transaction Date occurs. In addition, if since the beginning of the four full
fiscal quarter period preceding the Transaction Date, (x) the Company or any of
its Restricted Subsidiaries shall have engaged in any Asset Sale, EBITDA for
such period shall be reduced by an amount equal to the EBITDA (if positive), or
increased by an amount equal to the EBITDA (if negative), directly attributable
to the assets which are the subject of such Asset Sale for such period
calculated on a pro forma basis as if such Asset Sale and any related retirement
of Indebtedness had occurred on the first day of such period or (y) the Company
or any of its Restricted Subsidiaries shall have acquired any material assets,
EBITDA shall be calculated on a pro forma basis as if such asset acquisitions
had occurred on the first day of such four fiscal quarter period.
"Consolidated Interest Expense" means, with respect to any Person for any
period, without duplication, (i) the sum of (a) the aggregate amount of cash and
non-cash interest expense (including capitalized interest) of such Person and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with U.S. GAAP in respect of Indebtedness (including,
without limitation, (A) any amortization of debt discount, (B) net costs
associated with Interest Rate Protection Agreements (including any amortization
of discounts), (C) the interest portion of any deferred payment obligation, (D)
all accrued interest, and (E) all commissions, discounts, commitment fees,
origination fees and other fees and charges owed with respect to Bank Credit
Facilities and other Indebtedness) paid, accrued or scheduled to be paid or
accrued during such period; (b) Redeemable Stock dividends of such Person (and
of its Restricted Subsidiaries if paid to a Person other than such Person or its
Wholly Owned Subsidiaries) declared and payable other than in kind; (c) the
portion of any rental obligation of such Person or its Restricted Subsidiaries
in respect of any Capital Lease Obligation allocable to interest expense in
accordance with U.S. GAAP; (d) the portion of any rental obligation of such
Person or its Restricted Subsidiaries in respect of any Sale and Leaseback
Transaction allocable to interest expense (determined as if such obligation were
treated as a Capital Lease Obligation); and (e) to the extent any Indebtedness
of any other Person (other than Restricted Subsidiaries) is Guaranteed by such
Person or any of its Restricted Subsidiaries, the aggregate amount of interest
paid, accrued or scheduled to be paid or accrued by such other Person during
such period attributable to any such Indebtedness; less (ii) to the extent
included in (i) above, amortization or write-off of deferred financing costs of
such Person and its Restricted Subsidiaries during such period; in the case of
both (i) and (ii) above, after elimination of intercompany accounts among such
Person and its Restricted Subsidiaries and as determined in accordance with U.S.
GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with U.S. GAAP; provided that there shall be excluded therefrom,
without duplication, (i) items classified as extraordinary (other than the tax
benefit of the utilization of net operating loss carry-forwards and alternative
minimum tax credits); (ii) any gain or loss,
8
net of taxes, on the sale or other disposition of assets (including the Capital
Stock of any other Person) in excess of $5.0 million, from any sale or
disposition, or series of related sales or dispositions (but in no event shall
this clause (ii) apply to the sale of oil and gas inventories in the ordinary
course of business); (iii) the net income of any Subsidiary of such specified
Person to the extent the transfer to that Person of that income is restricted by
contract or otherwise, except for any cash dividends or cash distributions
actually paid by such Subsidiary to such Person during such period; (iv) the net
income (or loss) of any other Person in which such specified Person or any of
its Restricted Subsidiaries has an interest (which interest does not cause the
net income of such other Person to be consolidated with the net income of such
specified Person in accordance with U.S. GAAP or is an interest in a
consolidated Unrestricted Subsidiary), except to the extent of the amount of
cash dividends or other cash distributions actually paid to such Person or its
Restricted Subsidiaries by such other Person during such period; (v) the net
income of any Person acquired by such specified Person or any of its Restricted
Subsidiaries in a pooling-of-interests transaction for any period prior to the
date of such acquisition; (vi) any gain or loss, net of taxes, realized on the
termination of any employee pension benefit plan; (vii) any adjustments of a
deferred tax liability or asset pursuant to Statement of Financial Accounting
Standards No. 109 which result from changes in enacted tax laws or rates; and
(viii) the cumulative effect of a change in accounting principles.
"Consolidated Net Worth" of any Person means the stockholders' equity of
such Person and its Restricted Subsidiaries, as determined on a consolidated
basis in accordance with U.S. GAAP, less (to the extent included in
stockholders' equity) amounts attributable to Redeemable Stock of such Person or
its Restricted Subsidiaries.
"Corporate Trust Office" means the office of the Trustee in The Borough of
Manhattan, The City of New York, at which at any particular time its corporate
trust business shall be principally administered and which at the date hereof is
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1202.
"CUSIP Number" means, with respect to the Securities, an identification
number assigned to such security pursuant to the procedures of the Committee on
Uniform Security Identification Procedures and by the CUSIP Service Bureau.
"Default" means any event, act or condition the occurrence of which is, or
after notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 306.
9
"Defeasance" has the meaning specified in Section 1201.
"Depositary" means, with respect to Securities issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated by the Company to act as Depositary for such
Securities. Initially, the Depositary shall be The Depository Trust Company,
its nominees and their respective successors.
"Designated Senior Indebtedness" means any Senior Indebtedness which has,
at the time of determination, an aggregate principal amount outstanding of at
least $10 million (including the amount of all undrawn commitments and matured
and contingent reimbursement obligations pursuant to letters of credit
thereunder) and is specifically designated in the instrument evidencing such
Senior Indebtedness and is designated in a notice delivered by the Company to
the holders or a Representative of the holders of such Senior Indebtedness and
the Trustee as "Designated Senior Indebtedness" of the Company.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with U.S. GAAP, together with
all undertakings and obligations in connection therewith.
"EBITDA" means, with respect to any Person for any period, the Consolidated
Net Income of such Person and its consolidated Restricted Subsidiaries for such
period, plus (a) the sum of, to the extent reflected in the consolidated income
statement of such Person and its Restricted Subsidiaries for such period from
which Consolidated Net Income is determined and deducted in the determination of
such Consolidated Net Income, without duplication, (i) income tax expense (but
excluding income tax expense relating to sales or other dispositions of assets
(including the Capital Stock of any other Person) the gains and losses from
which are included in the determination of such Consolidated Net Income), (ii)
Consolidated Interest Expense, (iii) depreciation and depletion expense, (iv)
amortization expense, (v) exploration expense, and (vi) any other non-cash
charges including, without limitation, unrealized foreign exchange losses (but
excluding losses on sales or other dispositions of assets which are included in
the determination of such Consolidated Net Income); less (b) the sum of, to the
extent reflected in the consolidated income statement of such Person and its
Restricted Subsidiaries for such period from which Consolidated Net Income is
determined and added in the determination of such Consolidated Net Income,
without duplication (i) income tax recovery (but excluding income tax recovery
relating to sales or other dispositions of assets (including the Capital Stock
of any other Person) the gains and losses from which are included in the
determination of such Consolidated Net Income) and (ii) unrealized foreign
exchange gains.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" shall have the meaning specified in Section 1012.
10
"Exchange Act" means the United States Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time.
"Exchanged Properties" means oil and gas properties received by the Company
or a Restricted Subsidiary in trade or as a portion of the total consideration
for other such properties.
"Exchange Rate Contract" means, with respect to any Person, any currency
swap agreements, forward exchange rate agreements, foreign currency futures or
options, exchange rate collar agreements, exchange rate insurance and other
agreements or arrangements, or any combination thereof, designed to provide
protection against fluctuations in currency exchange rates.
"Expiration Date" has the meaning specified in Section 104.
"Expiry Date" has the meaning specified in the definition of "Prepayment
Offer Notice" set forth in this Section 101.
"Fair Market Value" means, with respect to any assets to be transferred
pursuant to any Asset Sale or Sale and Leaseback Transaction or any non-cash
consideration or property transferred or received by any Person, the fair market
value of such consideration or property as determined in good faith by (i) any
officer of the Company if such fair market value is less than $10 million and
(ii) the Board of Directors as evidenced by a Board Resolution if such fair
market value is equal to or in excess of $10 million; provided that if such
resolution indicates that such fair market value is equal to or in excess of $20
million and such transaction involves any Affiliate of the Company (other than a
Restricted Subsidiary), such resolution shall be accompanied by the written
opinion of an independent, nationally recognized investment banking firm or
appraisal firm, in either case specializing or having a specialty in the type
and subject matter of the transaction (or series of transactions) at issue, to
the effect that such consideration or property is fair, from a financial point
of view, to such Person.
"Foreign Subsidiary" means a Restricted Subsidiary that is incorporated in
a jurisdiction other than the United States or a State thereof or the District
of Columbia and engages in the Oil and Gas Business exclusively outside the
United States of America.
"Global Security" means a Security that evidences all or part of the
Securities and bears the legend set forth in Section 202.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including, without limitation, any Lien on the
assets of such
11
Person securing obligations of the primary obligor and any obligation of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or to purchase (or to advance or supply funds for
the purchase or payment of) any security for the payment of such Indebtedness,
(ii) to purchase Property, securities or services for the purpose of assuring
the holder of such Indebtedness of the payment of such Indebtedness, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have
meanings correlative to the foregoing); provided, however, that a Guarantee by
any Person shall not include (i) endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business or (ii) a
contractual commitment by one Person to invest in another Person for so long as
such Investment is reasonably expected to constitute a Permitted Investment
under clause (b) of the definition of Permitted Investments.
"Hedging Agreements" means Interest Rate Protection Agreements, Exchange
Rate Contracts and Oil and Gas Purchase and Sale Contracts.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), extend,
assume, Guarantee or become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to U.S. GAAP or otherwise, of
any such Indebtedness or obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in U.S. GAAP
that results in an obligation of such Person that exists at such time, and is
not theretofore classified as Indebtedness, becoming Indebtedness shall not be
deemed an Incurrence of such Indebtedness. For purposes of this definition,
Indebtedness of the Company or a Restricted Subsidiary held by a Wholly Owned
Subsidiary shall be deemed to be Incurred by the Company or such Restricted
Subsidiary in the event such Wholly Owned Subsidiary ceases to be a Wholly Owned
Subsidiary or in the event such Indebtedness is transferred to a Person other
than the Company or a Wholly Owned Subsidiary.
"Indebtedness" means at any time (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
and whether or not contingent, (i) any obligation of such Person for borrowed
money, (ii) any obligation of such Person evidenced by bonds, debentures, notes,
Guarantees or other similar instruments, including, without limitation, any such
obligations Incurred in connection with the acquisition of Property, assets or
businesses, (iii) any reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (iv) any
12
obligation of such Person issued or assumed as the deferred purchase price of
Property or services, (v) any Capital Lease Obligation of such Person, (vi) the
maximum fixed redemption or repurchase price of Redeemable Stock of such Person
at the time of determination, (vii) any payment obligation of such Person under
Hedging Agreements at the time of determination, (viii) any obligation to pay
rent or other payment amounts of such Person with respect to any Sale and
Leaseback Transaction to which such Person is a party, and (ix) any obligation
of the type referred to in clauses (i) through (viii) of this paragraph of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise; provided that Indebtedness shall
not include Production Payments and Reserve Sales. For purposes of this
definition, the maximum fixed repurchase price of any Redeemable Stock that does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Stock as if such Redeemable Stock were repurchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture; provided, however, that if such Redeemable Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability at such date in respect of any
contingent obligations described above.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Agreement" means, with respect to any Person, any
interest rate swap agreement, forward rate agreement, interest rate cap or
collar agreement or other financial agreement or arrangement designed to protect
such Person or its Restricted Subsidiaries against fluctuations in interest
rates, as in effect from time to time.
"Investment" means, with respect to any Person, (i) any amount paid by such
Person, directly or indirectly (such amount to be the fair market value of such
Capital Stock, securities or Property at the time of transfer), to any other
Person for Capital Stock or other Property of, or as a capital contribution to,
any other Person or (ii) any direct or indirect loan or advance to any other
Person (other than accounts receivable of such Person arising in the ordinary
course of business); provided, however, that Investments shall not include
extensions of trade credit on commercially reasonable
13
terms in accordance with normal trade practices and any increase in the equity
ownership in any Person resulting from retained earnings of such Person.
"Issue Date" means the date upon which the Securities first were issued and
authenticated hereunder.
"Investment Company Act" means the United States Investment Company Act of
1940 and any statute successor thereto, in each case as amended from time to
time.
"Legal Holiday" has the meaning specified in Section 113.
"Lien" means, with respect to any Property, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien
(statutory or other), charge, easement, encumbrance, preference, priority or
other security or similar agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing). For purposes
of Section 1009, a Capital Lease Obligation shall be deemed to be secured by a
Lien on the property being leased.
"Liquid Securities" means securities (i) of an issuer that is not an
Affiliate of the Company, (ii) that are publicly traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market and (iii) as
to which the Company is not subject to any restrictions on sale or transfer
(including any volume restrictions under Rule 144 under the Securities Act or
any other restrictions imposed by the Securities Act) or as to which a
registration statement under the Securities Act covering the resale thereof is
in effect for as long as the securities are held; provided, that securities
meeting the requirements of clauses (i), (ii) and (iii) above shall be treated
as Liquid Securities from the date of receipt thereof until and only until the
earlier of (x) the date on which such securities are sold or exchanged for cash
or cash equivalents and (y) 180 days following the date of receipt of such
securities. In the event such securities are not sold or exchanged for cash or
cash equivalents within 180 days of receipt thereof, for purposes of determining
whether the transaction pursuant to which the Company or a Restricted Subsidiary
received the securities was in compliance with Section 1012, such securities
shall be deemed not to have been Liquid Securities at any time.
"Maturity" means the date on which the principal of the Securities or an
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption, pursuant to a Prepayment Offer or Change of Control Offer or
otherwise.
"Material Change" means an increase or decrease (except to the extent
resulting from changes in prices) of more than 30% during a fiscal quarter in
the estimated
14
discounted future net revenues from proved oil and gas reserves of the Company
and its Restricted Subsidiaries, calculated in accordance with clause (a)(i) of
the definition of Adjusted Consolidated Net Tangible Assets; provided, however,
that the following will be excluded from the calculation of Material Change: (i)
any acquisitions during the quarter of oil and gas reserves with respect to
which the Company's estimate of the discounted future net revenues from proved
oil and gas reserves has been confirmed by independent petroleum engineers and
(ii) any dispositions of Properties during such quarter that were disposed of in
compliance with Section 1012.
"Moody's" means ▇▇▇▇▇'▇ Investors Service Inc., and any successor to its
business or operations.
"Net Available Cash" from an Asset Sale means cash proceeds received
(including any cash proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received, and excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to such properties or assets) therefrom, in each case net of (i) all legal,
title and recording expenses, commissions and other fees and expenses incurred,
and all Federal, state, foreign and local taxes required to be paid or accrued
as a liability under U.S. GAAP as a consequence of such Asset Sale, (ii) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Sale, in accordance with the terms of any Lien upon such assets, or which
must by its terms, or in order to obtain a necessary consent to such Asset Sale
or by applicable law, be repaid out of the proceeds from such Asset Sale, (iii)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale, and
(iv) the deduction of appropriate amounts to be provided by the seller as a
reserve, in accordance with U.S. GAAP, against any liabilities associated with
the assets disposed of in such Asset Sale and retained by the Company or any
Restricted Subsidiary after such Asset Sale; provided, however, that in the
event that any consideration for an Asset Sale (which would otherwise constitute
Net Available Cash) is required to be held in escrow pending determination of
whether a purchase price adjustment will be made, such consideration (or any
portion thereof) shall become Net Available Cash only at such time as it is
released to such Person or its Restricted Subsidiaries from escrow; and
provided, further, however, that any non-cash consideration received in
connection with an Asset Sale which is subsequently converted to cash shall be
deemed to be Net Available Cash at such time and shall thereafter be applied in
accordance with Section 1012.
"Net Working Capital" means (i) all current assets of the Company and its
Restricted Subsidiaries, less (ii) all current liabilities of the Company and
its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with U.S. GAAP.
15
"9% Indenture" means the indenture dated as of December 20, 1995, between
the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
trustee, relating to the issuance of the 9% Notes.
"9% Notes" means the 9% Senior Subordinated Notes Due 2005 of the Company,
issued pursuant to the 9% Indenture.
"Notice of Default" means a written notice of the kind specified in Section
501.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or any Vice President,
together with any one of the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Oil and Gas Business" means the business of exploiting, exploring for,
developing, acquiring, producing, processing, gathering, marketing, storing and
transporting hydrocarbons and other related energy businesses.
"Oil and Gas Liens" means (i) Liens on any specific property or any
interest therein, construction thereon or improvement thereto to secure all or
any part of the costs incurred for surveying, exploration, drilling, extraction,
development, operation, production, construction, alteration, repair or
improvement of, in, under or on such property and the plugging and abandonment
of ▇▇▇▇▇ located thereon (it being understood that, in the case of oil and gas
producing properties, or any interest therein, costs incurred for "development"
shall include costs incurred for all facilities relating to such properties or
to projects, ventures or other arrangements of which such properties form a part
or which relate to such properties or interests); (ii) Liens on an oil and/or
gas producing property to secure obligations Incurred or guarantees of
obligations Incurred in connection with or necessarily incidental to commitments
for the purchase or sale of, or the transportation or distribution of, the
products derived from such property; (iii) Liens arising under partnership
agreements, oil and gas leases, overriding royalty agreements, net profits
agreements, production payment agreements, royalty trust agreements, master
limited partnership agreements, farm-out agreements, division orders, contracts
for the sale, purchase, exchange, transportation, gathering or processing of
oil, gas or other hydrocarbons, unitizations and pooling designations,
declarations, orders and agreements, development agreements, operating
agreements, production sales contracts, area of mutual interest agreements, gas
balancing or deferred production agreements, injection, repressuring and
recycling agreements, salt water or other disposal agreements, seismic or
geophysical permits or agreements, and other agreements which are customary in
the Oil and Gas Business, provided in all instances that such Liens are limited
to the assets that are the subject of the relevant agreement; (iv) Liens arising
in connection with Production Payments and Reserve Sales; and (v) Liens on
pipelines or pipeline facilities that arise by operation of law.
16
"Oil and Gas Purchase and Sale Contract" means, with respect to any Person,
any oil and gas agreements, and other agreements or arrangements, or any
combination thereof, designed to provide protection against oil and gas price
fluctuations.
"Opinion of Counsel" means a written opinion of counsel, who may be
internal legal counsel for the Company, who shall be acceptable to the Trustee
and who may rely as to factual matters on Officers' Certificates.
"Outstanding" means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Paying Agent (other than the
Company or its Wholly Owned Subsidiaries) in trust for the Holders of such
Securities and the Paying Agent is not prohibited from paying such money to
the Holders of Securities on that date pursuant to the terms of this
Indenture; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1201; and
(4) Securities which have been paid pursuant to Section 305 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the
17
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"paid in full" or "payment in full" has the meaning specified in Section
1302.
"pari passu", when used with respect to the ranking of any Indebtedness of
any Person in relation to other Indebtedness of such Person, means that each
such Indebtedness (a) either (i) is not subordinated in right of payment to any
other Indebtedness of such Person or (ii) is subordinate in right of payment to
the same Indebtedness of such person as is the other and is so subordinate to
the same extent and (b) is not subordinate in right of payment to the other or
to any Indebtedness of such Person as to which the other is not so subordinated.
"Pari Passu Indebtedness" means any Indebtedness of the Company (including,
without limitation, the 9% Notes) that is pari passu in right of payment to the
Securities.
"Participants" has the meaning specified in Section 304.
"pay the Securities" has the meaning specified in Section 1303.
"Paying Agent" has the meaning specified in Section 1002.
"Payment Blockage Notice" has the meaning specified in Section 1303.
"Payment Blockage Period" has the meaning specified in Section 1303.
"Permitted Business Investments" means Investments and expenditures made in
the ordinary course of, and of a nature that is or shall have become customary
in, the Oil and Gas Business as means of actively exploiting, exploring for,
acquiring, developing, processing, gathering, marketing or transporting oil and
gas through agreements, transactions, interests or arrangements which permit one
to share risks or costs, comply with regulatory requirements regarding local
ownership or satisfy other objectives customarily achieved through the conduct
of Oil and Gas Business jointly with third parties, including, without
limitation, (i) ownership interests in oil and gas properties or gathering,
transportation, processing, storage or related systems and (ii) Investments and
expenditures in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements,
area of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts, joint venture
agreements, partnership agreements (whether general or limited), subscription
agreements, stock purchase agreements and other similar agreements with third
parties (including Unrestricted Subsidiaries).
18
"Permitted Designee" means (i) a spouse or a child of a Permitted Holder,
(ii) trusts for the benefit of a Permitted Holder or a spouse or child of a
Permitted Holder, (iii) in the event of the death or incompetence of a Permitted
Holder, his estate, heirs, executor, administrator, committee or other personal
representative or (iv) any Person so long as a Permitted Holder owns at least
51% of the voting power of all classes of the Voting Stock of such Person.
"Permitted Holders" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., Jo ▇▇▇ ▇▇▇▇▇, S.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and their Permitted Designees.
"Permitted Indebtedness" means any and all of the following: (a)
Indebtedness evidenced by the Securities; (b) Indebtedness under Bank Credit
Facilities, provided that the aggregate principal amount of all such
Indebtedness under Bank Credit Facilities, together with all Indebtedness
Incurred pursuant to clause (l) of this paragraph in respect of Indebtedness
previously Incurred pursuant to this clause (b), at any one time outstanding
does not exceed the greater of (i) $265 million and (ii) an amount equal to the
sum of (A) $100 million and (B) 15% of Adjusted Consolidated Net Tangible Assets
determined as of the date of the Incurrence of such Indebtedness; provided,
however, that the maximum amount available to be outstanding under Bank Credit
Facilities shall be permanently reduced by the amount of Net Available Cash
from Assets Sales used to permanently repay Indebtedness under Bank Credit
Facilities, and not subsequently reinvested in Additional Assets or used to
permanently reduce other Indebtedness to the extent permitted pursuant to
Section 1012; (c) Indebtedness to the Company or any of its Wholly Owned
Subsidiaries by any of its Restricted Subsidiaries or Indebtedness of the
Company to any of its Wholly Owned Subsidiaries (but only so long as such
Indebtedness is held by the Company or a Wholly Owned Subsidiary); (d)
Indebtedness in connection with one or more standby letters of credit,
Guarantees, performance bonds or other reimbursement obligations issued in the
ordinary course of business and not in connection with the borrowing of money or
the obtaining of advances or credit (other than advances or credit on open
account, includable in current liabilities, for goods and services in the
ordinary course of business and on terms and conditions which are customary in
the Oil and Gas Business and other than the extension of credit represented by
such letter of credit, Guarantee or performance bond itself); (e) Indebtedness
of any Person which shall merge or consolidate with or into the Company in
accordance with Section 801, which was outstanding prior to such merger or
consolidation; (f) Indebtedness under Interest Rate Protection Agreements
entered into for the purpose of limiting interest rate risks, provided that the
obligations under such agreements are related to payment obligations on
Indebtedness otherwise permitted by the terms of Section 1008; (g) Indebtedness
under Exchange Rate Contracts, provided that such Exchange Rate Contracts were
entered into for the purpose of limiting exchange rate risks in connection with
transactions entered into in the ordinary course of business; (h) Indebtedness
under Oil and Gas Purchase and Sale Contracts, provided that such contracts were
entered into in the ordinary course of business for the purpose of limiting
risks that arise in the ordinary course of business of the Company and its
Subsidiaries; (i) in-kind obligations
19
relating to net oil or gas balancing positions arising in the ordinary course of
business that are customary in the Oil and Gas Business; (j) Indebtedness
outstanding on the Issue Date not otherwise permitted in clauses (a) through (i)
above; (k) Indebtedness not otherwise permitted to be Incurred pursuant to this
paragraph, provided that the aggregate principal amount of all Indebtedness
Incurred pursuant to this clause (k), together with all Indebtedness Incurred
pursuant to clause (l) of this paragraph in respect of Indebtedness previously
Incurred pursuant to this clause (k), at any one time outstanding does not
exceed $25 million; (l) Indebtedness Incurred in exchange for, or the proceeds
of which are used to refinance, (i) Indebtedness referred to in clauses (a)
through (k) of this paragraph (including Indebtedness previously Incurred
pursuant to this clause (l)) and (ii) Indebtedness Incurred pursuant to clause
(a) of Section 1008; provided, however, that (i) such Indebtedness is in an
aggregate principal amount not in excess of the sum of (A) the aggregate
principal amount then outstanding of the Indebtedness being exchanged or
refinanced and (B) an amount necessary to pay any fees and expenses, including
premiums, related to such exchange or refinancing, (ii) such Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
exchanged or refinanced, (iii) such Indebtedness has an Average Life to Stated
Maturity at the time such Indebtedness is Incurred that is equal to or greater
than the Average Life to Stated Maturity of the Indebtedness being exchanged or
refinanced, and (iv) such Indebtedness is subordinated in right of payment to
Senior Indebtedness or the Securities to at least the same extent, if any, as
the Indebtedness being exchanged or refinanced; (m) Indebtedness consisting of
obligations in respect of purchase price adjustments, indemnities or Guarantees
of the same or similar matters in connection with the acquisition or disposition
of assets; and (n) accounts payable or other obligations of the Company or any
Restricted Subsidiary to trade creditors created or assumed by the Company or
such Restricted Subsidiary in the ordinary course of business in connection with
the obtaining of goods or services.
"Permitted Investments" means any and all of the following: (a) Permitted
Short-Term Investments; (b) Investments in property, plant and equipment used in
the ordinary course of business and Permitted Business Investments; (c)
Investments by the Company or any Restricted Subsidiary in a Restricted
Subsidiary and Investments by a Restricted Subsidiary in the Company; (d)
Investments in any other Person, including the acquisition from third parties of
Capital Stock of a Restricted Subsidiary or any other Person, as a result of
which such other Person becomes a Restricted Subsidiary in compliance with
Section 1016 or is merged into or consolidated with or transfers or conveys all
or substantially all of its assets to the Company or a Restricted Subsidiary;
(e) negotiable instruments held for collection; lease, utility and other similar
deposits; or stock, obligations or securities received in settlement of debts
owing to the Company or any of its Restricted Subsidiaries as a result of
foreclosure, perfection or enforcement of any Lien or Indebtedness, in each of
the foregoing cases in the ordinary course of business of the Company or such
Restricted Subsidiary; (f) Investments in Persons in the Oil and Gas Business
(other than Restricted Subsidiaries) intended to promote the Company's strategic
business objectives in an amount not to exceed $20 million at any one time
outstanding; (g) loans made (i) to officers, directors
20
and employees of the Company or any Subsidiary approved by the Board of
Directors (or by a duly authorized officer), the proceeds of which are used
solely to exercise stock options received pursuant to an employee stock option
plan or other incentive plan, in a principal amount not to exceed the exercise
price of such stock options, and (ii) to refinance loans, together with accrued
interest thereon, made pursuant to this clause (g); (h) advances and loans to
officers, directors and employees of the Company or any Subsidiary in the
ordinary course of business, provided such loans and advances do not exceed $3.0
million at any one time outstanding; (i) Investments in the form of securities
received from Asset Sales, provided that such Asset Sales are made in compliance
with Section 1012; and (j) Investments pursuant to any agreement or obligation
of the Company or any of its Restricted Subsidiaries as in effect on the Issue
Date (other than Investments described in clauses (a) through (i) above).
"Permitted Liens" shall have the meaning specified in Section 1009.
"Permitted Short-Term Investments" means (a) Investments in U.S. Government
Obligations maturing within one year of the date of acquisition thereof, (b)
Investments in demand accounts, time deposit accounts, certificates of deposit,
bankers acceptances and money market deposits maturing within one year of the
date of acquisition thereof issued by a bank or trust company which is organized
under the laws of the United States of America or any State thereof that is a
member of the Federal Reserve System having capital, surplus and undivided
profits aggregating in excess of $500 million and whose long-term indebtedness
is rated "A" (or higher) according to Moody's, (c) Investments in demand
accounts, time deposit accounts, certificates of deposit, bankers acceptances
and money market deposits maturing within one year of the date of acquisition
thereof issued by a Canadian bank to which the Bank Act (Canada) applies having
capital, surplus and undivided profits aggregating in excess of $500 million,
(d) Investments in deposits available for withdrawal on demand with any
commercial bank which is organized under the laws of any country in which the
Company or any Restricted Subsidiary maintains an office or is engaged in the
Oil and Gas Business, provided that (i) all such deposits have been made in such
accounts in the ordinary course of business and (ii) such deposits do not at any
one time exceed $20 million in the aggregate, (e) repurchase and reverse
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (a) entered into with a bank meeting
the qualifications described in either clause (b) or (c), (f) Investments in
commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any State thereof
with a rating at the time as of which any Investment therein is made of "P-1"
(or higher) according to Moody's or "A-1" (or higher) according to S&P, and (g)
Investments in any money market mutual fund having assets in excess of $250
million substantially all of which consist of other obligations of the types
described in clauses (a), (b), (e) and (f) hereof.
21
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 305 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.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends and/or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person; provided, however, that
"Preferred Stock" shall not include Redeemable Stock.
"Prepayment Offer" has the meaning specified in Section 1012(c).
"Prepayment Offer Notice" means a written notice of a Prepayment Offer sent
by the Company by first-class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Prepayment Offer
offering to purchase up to the principal amount of Securities specified in such
Prepayment Offer at the purchase price specified in such Prepayment Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Prepayment Offer Notice shall specify an expiry date (the "Expiry
Date") of the Prepayment Offer which shall be, subject to any contrary
requirements of applicable law, and a settlement date (the "Purchase Date") for
purchase of the Securities which shall be, subject to any contrary requirements
of applicable law, not less than 30 days nor more than 60 days after the date
the Prepayment Offer Notice is mailed. The Prepayment Offer Notice shall
contain information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make an
informed decision with respect to the Prepayment Offer, which at a minimum will
include (i) the Company's most recent annual and quarterly financial statements
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" (which requirements may be satisfied by delivery of such documents
together with the Prepayment Offer), (ii) a description of material developments
in the Company's business subsequent to the date of the latest of such financial
statements referred to in clause (i), (iii) if applicable, appropriate pro forma
financial information concerning the Prepayment Offer, (iv) a description of the
events requiring the Company to make the Prepayment Offer, (v) a description of
the procedure which Holders must follow and any other information necessary to
enable such Holders to tender Securities pursuant to the Prepayment Offer, (vi)
a description of the procedure which Holders must follow and any other
information necessary to enable such Holders
22
to withdraw an election to tender Securities for payment, and (vi) any other
information required by applicable law to be included therein. The Prepayment
Offer Notice shall also state:
(1) the Expiry Date and the Purchase Date;
(2) that any Securities (or any portion thereof) accepted for payment (and
duly paid on the Purchase Date) pursuant to the Prepayment Offer shall cease
to accrue interest after the Purchase Date;
(3) the aggregate principal amount of the Securities offered to be
purchased by the Company pursuant to the Prepayment Offer (including, if less
than 100%, the manner by which such has been determined pursuant to the
Indenture) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000 aggregate
principal amount of Securities accepted for payment (as specified pursuant to
this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount;
(6) the place or places where Securities are to be surrendered for tender
pursuant to the Prepayment Offer;
(7) that each Holder electing to tender a Security pursuant to the
Prepayment Offer will be required to surrender such Security at the place or
places specified in the Prepayment Offer Notice prior to the close of business
on the Expiry Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing);
(8) that Holders will be entitled to withdraw all or any portion of the
Securities tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the Expiry Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder tendered, the certificate number of the Security the
Holder tendered and a statement that such Holder is withdrawing all or a
portion of his tender;
(9) that if Securities in an aggregate principal amount less than or equal
to the Purchase Amount are duly tendered and not withdrawn pursuant to the
Prepayment Offer, the Company shall purchase all such Securities; and
23
(10) that in case of any Holder whose Security is purchased only in part,
the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Security so tendered.
Any Prepayment Offer Notice shall be governed by and effected in accordance with
Section 1012.
"primary obligor" has the meaning specified in the definition of
"Guarantee" set forth in this Section 101.
"Production Payments and Reserve Sales" means the grant or transfer to any
Person of a royalty, overriding royalty, net profits interest, production
payment (whether volumetric or dollar denominated), master limited partnership
interest or other interest in oil and gas properties, reserves or the right to
receive all or a portion of the production or the proceeds from the sale of
production attributable to such properties where the holder of such interest has
recourse solely to such production or proceeds of production, subject to the
obligation of the grantor or transferor to operate and maintain, or cause the
subject interests to be operated and maintained, in a reasonably prudent manner
or other customary standard or subject to the obligation of the grantor or
transferor to indemnify for environmental matters.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including, without limitation, Capital Stock in any other Person
(but excluding Capital Stock or other securities issued by such first mentioned
Person).
"Purchase Amount" has the meaning specified in the definition of
"Prepayment Offer Notice" set forth in this Section 101.
"Purchase Date" has the meaning specified in the definition of "Prepayment
Offer Notice" set forth in this Section 101.
"Purchase Price" has the meaning specified in the definition of "Prepayment
Offer Notice" set forth in this Section 101.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or otherwise (including on the happening of an
event), is or could become required to be redeemed for cash or other Property or
is or could become redeemable for cash or other Property at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of the
Stated Maturity of the Securities; or is or could become exchangeable at the
option of the holder thereof for Indebtedness
24
at any time, in whole or in part, on or prior to the first anniversary of the
Stated Maturity of the Securities; provided, however, that Redeemable Stock
shall not include any security by virtue of the fact that it may be exchanged or
converted at the option of the holder for Capital Stock of the Company having no
preference as to dividends or liquidation over any other Capital Stock of the
Company.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registrar" has the meaning specified in Section 1002.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities means the date specified for that purpose in the Securities.
"Remaining Excess Proceeds" shall have the meaning specified in Section
1012.
"Representative" means the trustee, agent or representative expressly
authorized to act in such capacity, if any, for an issue of Senior Indebtedness.
"Restricted Payment" means (i) a dividend or other distribution declared or
paid on the Capital Stock or Redeemable Stock of the Company or to the Company's
stockholders (other than dividends, distributions or payments made solely in
Capital Stock of the Company), or declared and paid to any Person other than the
Company or any of its Restricted Subsidiaries on the Capital Stock or Redeemable
Stock of any Restricted Subsidiary, (ii) a payment made by the Company or any of
its Restricted Subsidiaries (other than to the Company or any Restricted
Subsidiary) to purchase, redeem, acquire or retire any Capital Stock or
Redeemable Stock of the Company or of a Restricted Subsidiary, (iii) a payment
made by the Company or any of its Restricted Subsidiaries to redeem, repurchase,
defease or otherwise acquire or retire for value (including pursuant to
mandatory repurchase covenants), prior to any scheduled maturity, scheduled
sinking fund or scheduled mandatory redemption, Indebtedness of the Company
which is subordinate (whether pursuant to its terms or by operation of law) in
right of payment to the Securities, (iv) an Investment by the Company or a
Restricted Subsidiary in any Person other than the Company or a Restricted
Subsidiary, or (v) the sale or issuance of Capital Stock of a Restricted
Subsidiary to a Person other than the Company or another Restricted Subsidiary
if the result thereof is that such Restricted Subsidiary shall cease to be a
Restricted Subsidiary, in which event the amount of such "Restricted Payment"
shall be the Fair Market Value of the remaining interest in such former
Restricted Subsidiary held by the Company and its other Restricted Subsidiaries.
25
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated an Unrestricted Subsidiary in the manner provided in Section
1016.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement (excluding, however, any such arrangement between
such Person and a Wholly Owned Subsidiary of such Person or between one or more
Wholly Owned Subsidiaries of such Person) pursuant to which Property is sold or
transferred by such Person or a Restricted Subsidiary of such Person and is
thereafter leased back from the purchaser or transferee thereof by such Person
or one of its Restricted Subsidiaries.
"Securities" has the meaning stated in the preamble of this Indenture, as
amended or supplemented from time to time in accordance with the terms hereof,
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the United States Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 304.
"Senior Indebtedness" means (i) all obligations consisting of the principal
of and premium, if any, and accrued and unpaid interest in respect of (A)
Indebtedness of the Company for borrowed money and (B) Indebtedness evidenced by
notes, debentures, bonds or other similar instruments permitted under this
Indenture for the payment of which the Company is responsible or liable; (ii)
all Capital Lease Obligations of the Company; (iii) all obligations of the
Company (A) for the reimbursement of any obligor on any letter of credit,
bankers' acceptance or similar credit transaction, (B) under Hedging Agreements
or (C) issued or assumed as the deferred purchase price of property and all
conditional sale obligations of the Company and all obligations under any title
retention agreement permitted under this Indenture; and (iv) all obligations of
other persons of the type referred to in clauses (i) and (ii) for the payment of
which the Company is responsible or liable as Guarantor; provided that Senior
Indebtedness does not include (i) Pari Passu Indebtedness or Indebtedness of the
Company that is by its terms subordinate in right of payment to the Securities;
(ii) any Indebtedness Incurred in violation of the provisions of this Indenture;
(iii) accounts payable or any other obligations of the Company to trade
creditors created or assumed by the Company in the ordinary course of business
in connection with the obtaining of materials or services; (iv) in-kind
obligations relating to net oil and gas balancing positions; or (v) any
liability for Federal, state, local or other taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 306.
26
"S&P" means Standard & Poor's Ratings Group and any successor to its
business or operations.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security as the fixed date on which the principal of such security or
such installment of principal or interest is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subsidiary" of a Person means (a) another Person which is a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned or
controlled by (i) the first Person, (ii) the first Person and one or more of its
Subsidiaries, or (iii) one or more of the first Person's Subsidiaries or (b)
another Person which is not a corporation (x) at least 50% of the ownership
interest of which and (y) the power to elect or direct the election of a
majority of the directors or other governing body of which are controlled by
Persons referred to in clauses (i), (ii) or (iii) above.
"Surviving Entity" has the meaning specified in Section 801.
"Transaction Date" has the meaning specified in the definition of
"Consolidated Interest Coverage Ratio" set forth in this Section 101.
"Trust Indenture Act" means the United States Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the United States Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the United States Trust Indenture Act of 1939 as so amended.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include the successor.
"Unrestricted Subsidiary" means (i) each Subsidiary of the Company that the
Company has designated pursuant to Section 1016 as an Unrestricted Subsidiary
and (ii) any Subsidiary of an Unrestricted Subsidiary.
"U.S. GAAP" means United States generally accepted accounting principles as
in effect on the date of this Indenture, unless stated otherwise.
27
"U.S. Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with U.S. GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Redeemable Stock" of any Person means Redeemable Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" means, at any time, a Restricted Subsidiary all
of the Voting Stock of which (except directors' qualifying shares) is at the
time owned, directly or indirectly, by the Company and its other Wholly Owned
Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each
28
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include,
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
29
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders shall be proved in the manner provided in Section 1506.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Except as provided in Section 1402, any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
30
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities; provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) any request to institute proceedings referred to in
Section 507(2) or (iv) any direction referred to in Section 512, in each case
with respect to the Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or
direction or to revoke the same, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 106.
31
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or prior
to the existing Expiration Date; provided, further, that the Expiration Date
shall be no later than 180 days following the record date relating to such
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record
date shall be deemed to have designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date to any earlier day as provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to the Securities may do so with regard to all or
any part of the principal amount of such Securities or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trustee
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument, Attention: Chief Financial Officer or at any other address
previously furnished in writing to the Trustee by the Company.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification shall constitute a sufficient notification for every purpose
hereunder if made, given, furnished or filed in writing by facsimile
transmission or otherwise to or with the Company at its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
32
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under the Trust Indenture Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings, Table of Contents and Cross-Reference Sheet.
The Article and Section headings herein, the Table of Contents and the
Cross-Reference Sheet are for convenience only and shall not affect the
construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
33
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
principles of conflicts of laws.
SECTION 113. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date, Change of Control Payment Date or Stated Maturity of any Security shall be
a Legal Holiday, then (notwithstanding any other provision of this Indenture or
of the Securities other than a provision in the Securities which expressly
states that such provision shall apply in lieu of this Section) payment of
interest or principal (and premium, if any) need not be made on such date, but
may be made on the next succeeding day that is not a Legal Holiday with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Purchase Date, Change of Control Payment Date or at the Stated Maturity,
provided that no interest shall accrue from and after such Interest Payment
Date, Redemption Date, Purchase Date, Change of Control Payment Date or Stated
Maturity, as the case may be. If a regular record date is a Legal Holiday, the
record date shall not be affected.
34
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Securities.
The Securities shall be in substantially the form set forth in this Article
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Securities may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
The Securities shall be issued initially in the form of one or more
permanent Global Securities in definitive, fully registered form without
interest coupons in substantially the form set forth in Sections 202 and 203
hereof, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee in the limited
circumstances hereinafter provided.
The Securities shall be typed, printed, lithographed or engraved or may be
produced in any other manner, all as determined by the officers executing the
Securities, as evidenced by their execution of the Securities.
SECTION 202. Form of Face of Global Security.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
35
.....................................
[ ]% Senior Subordinated Note Due 2009
...............................................
No. ...... $ .....
CUSIP No. 927460 AB 1
VINTAGE PETROLEUM, INC., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
............................. or registered assigns, the principal sum of
...................... on [ ], 2009, and to pay interest thereon
from [ ], 1997, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on [
] and [ ] in each year, commencing [ ], 1997, at the rate of [
]% per annum, both before and after default, with interest upon overdue interest
at the same rate (to the extent legally permitted) until the principal hereof is
paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [ ] or [
] (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
36
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
VINTAGE PETROLEUM, INC.
By.............................................
By.............................................
SECTION 203. Form of Reverse of Global Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued under an Indenture, dated as of
[ ], 1997 (herein called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company and The Chase
Manhattan Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Indebtedness and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the Securities issued pursuant to the Indenture limited in
aggregate principal amount to $[100,000,000].
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after [ ], 2002, in
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed during
the 12-month period beginning [ ] of the years indicated:
Redemption
Year Price
---- -----------------
2002 [ ]%
2003 [ ]%
2004 [ ]%
2005 [ ]%
and thereafter, beginning [ ], 2006, at a Redemption Price equal to
100% of the principal amount, together, in the case of any such redemption, with
accrued and
37
unpaid interest (if any) to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of the Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Upon a Change of Control, any Holder of Securities will have the right to
cause the Company to purchase all or any part of the Securities of such Holder
at a purchase price equal to 101% of the principal amount of the Securities to
be purchased plus accrued and unpaid interest thereon to the Change of Control
Payment Date as provided in, and subject to the terms of, the Indenture.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided, and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal of and accrued and unpaid interest on the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture provides that modifications and amendments of the Indenture
may be made by the Company and the Trustee without the consent of any Holders of
Securities in certain limited circumstances. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all Securities,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
38
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 or any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
39
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and none of the Company, the
Trustee and any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Company's [ ]% Senior Subordinated Notes Due 2009
referred to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank, As Trustee
By................................................
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 or an integral multiple thereof.
SECTION 302. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or by any Vice
President,
40
together with any one of the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Company. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 308, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
The Trustee shall authenticate and deliver Securities for original issue in
an aggregate principal amount of $[100,000,000], upon Company Order. Such
Company Order shall specify the date on which the original issue of Securities
is to be authenticated and shall further provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate principal
amount of Securities outstanding at any time may not exceed $[100,000,000],
except as provided in Section 305.
SECTION 303. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities 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
41
surrender of the temporary Securities at the office or agency of the Company
maintained for that purpose, 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 one or more
definitive Securities, of any authorized denominations and of like tenor and
aggregate principal amount. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 304. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office a register
(the register maintained in such office or in any other office or agency of the
Company maintained pursuant to Section 1002 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 Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company maintained for such purpose, 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
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities 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 Trustee) 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 of Securities, but the Company may require payment of a sum sufficient
to cover any tax
42
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 303, 906 or 1106 not involving any transfer.
If the Securities are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 1102 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
With respect to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and deposited with such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) A Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary. A Global Security is exchangeable for certificated Securities
only if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act,
(ii) the Company executes and delivers to the Trustee a notice that such
Global Security shall be so transferable, registrable, and exchangeable, and
such transfers shall be registrable or (iii) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default with respect to
the Securities represented by such Global Security. Any Global Security that
is exchangeable for certificated Securities pursuant to the preceding sentence
will be transferred to, and registered and exchanged for, certificated
Securities in authorized denominations, without legends applicable to a Global
Security, and registered in such names as the Depositary holding such Global
Security may direct. Subject to the foregoing, a Global Security is not
exchangeable, except for a Global Security of like denomination to be
registered in the name of the Depositary or its nominee. In the event that a
Global Security becomes exchangeable for certificated Securities, (i)
certificated Securities will be issued only in fully registered form in
denominations of $1,000 or integral multiples thereof, (ii) payment of
principal, any repurchase price, and interest on the certificated Securities
will be payable, and the transfer of the certificated Securities will be
registerable, at the office or agency of the Company maintained for such
purposes, and (iii) no service charge will be made for any registration of
transfer or exchange of the certificated Securities, although the Company may
require payment
43
of a sum sufficient to cover any tax or governmental charge imposed in
connection therewith.
(3) Securities issued in exchange for a Global Security or any portion
thereof shall have an aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any
Global Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee. With respect to any Global Security to be
exchanged in part, either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of the
Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon the
order of the Depositary or an authorized representative thereof.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 303, 305, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name of
a Person other than the Depositary for such Global Security or a nominee
thereof.
Members of, or participants in, the Depositary ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as the custodian of the Depositary or
under such Global Security, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Participants, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
SECTION 305. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities 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 306. 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 that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for
45
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 to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of Securities
in the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, 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 (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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 307. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 306) any interest on such Security and for all other
purposes whatsoever, whether or not such
46
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 308. Cancellation.
All Securities surrendered for payment, redemption or 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 may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such cancelled Securities.
SECTION 309. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 310. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers, and, if so,
the Trustee shall use CUSIP numbers in notices of redemption, any Prepayment
Offer Notice or any notice of a Change of Control Offer as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption, Prepayment Offer Notice or any notice of
a Change of Control Offer and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption,
prepayment or offer shall not be affected by any defect in or omission of such
numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 305 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii)are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee, as trust
funds in trust for the purpose, money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation (and the Company is not
prohibited from depositing such money for such purpose on that date
pursuant to the terms of this Indenture) for principal and any premium and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614, the obligation of the
Company under the last paragraph of Section 1003 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee. Money held by the Trustee pursuant to this Article shall not be
subject to the claims of the holders of Senior Indebtedness.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Thirteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose
49
performance or whose breach is elsewhere in this Section specifically dealt
with) and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) a default under any Indebtedness for borrowed money by the Company or
any Restricted Subsidiary, or under any mortgage, indenture or instrument
(including this Indenture) under which there may be issued or by which there
may be secured or evidenced any such Indebtedness, which default shall have
resulted in an amount greater than $10 million ($40 million in the case of
Indebtedness of a Foreign Subsidiary the recourse for which is limited to
solely Foreign Subsidiaries) of such Indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, or a failure to pay any Indebtedness in an amount greater than
$10 million ($40 million in the case of Indebtedness of a Foreign Subsidiary
the recourse for which is limited to solely Foreign Subsidiaries) at maturity,
in each case without such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities a written notice
specifying such default and requiring the Company to cause such Indebtedness
to be discharged or cause such acceleration to be rescinded or annulled, as
the case may be, and stating that such notice is a "Notice of Default"
hereunder; or
(5) a final judgment or order or final judgments or orders for the payment
of money are entered against the Company or any Restricted Subsidiary in an
uninsured or unindemnified aggregate amount in excess of $10 million by a
court or courts of competent jurisdiction, which judgments or orders are not
discharged, waived, stayed, satisfied or bonded within a period (during which
execution shall not be effectively stayed) of 60 consecutive days after the
right to appeal all such judgments or orders has expired; or
(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 any substantial
part of its property; or
50
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
or
(7) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company or any Restricted Subsidiary in an
involuntary case;
(B) appoints a Custodian of the Company or any Restricted Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any Restricted
Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
------------------
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(6) or 501(7)) shall occur and be continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal amount of and accrued and
unpaid interest on all the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount and accrued and unpaid interest
shall become immediately due and payable. If an Event of Default specified in
Section 501(6) or 501(7) occurs, the principal amount of and interest on all the
Securities shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree based on acceleration for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority
51
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities,
(B) to the extent that payment of such interest is lawful and is
required hereunder, interest upon overdue interest at the rate borne by
such Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal or
interest of the Securities which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on the Securities when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) the Securities at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities, the whole amount then due and payable on the
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including
52
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of the Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture 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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under Section 607;
and
SECOND: subject to Article Thirteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
54
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders To Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, a Holder of the
Securities shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 306)
interest on the Securities on the Stated Maturities expressed in the Securities
(or, in the case of redemption, prepayment or Change of Control, on the
Redemption Date, Purchase Date or Change of Control Payment Date, respectively)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
305, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of the Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities; provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture and would not involve the Trustee in personal liability, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may by Act of such Holders on behalf of the Holders of
all the Securities waive any past or existing Default or Event of Default
hereunder and its consequences, except a Default
(1) in the payment of the principal of or any premium or interest on the
Securities, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security.
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 thereto.
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SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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SECTION 602. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Holder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on any Security (including payments pursuant to the mandatory
redemption provisions of such Security, if any), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel reasonably selected by it and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report,
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notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Trustee's Disclaimer.
The Trustee shall not be responsible for and 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, and it
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication. The Trustee
shall not be charged with notice or knowledge of any Default or Event of Default
unless (i) a Trust Officer shall have actual knowledge thereof or (ii) the
Trustee shall have received notice thereof in accordance with Section 105 from
the Company or any Holder.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
to the Company from time to time upon receipt by the Trustee of a Company Order
except as otherwise provided in this Indenture.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed to in writing by the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
To secure the Company's payment obligations under this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee as such, except money or property held in trust to pay
the principal of or interest on particular Securities.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the
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Trustee shall not be deemed to have a conflicting interest by virtue of
being trustee under the 9% Indenture, relating to the 9% Notes.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder. The
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time by giving written notice thereof to the
Company.
The Trustee may be removed at any time by Act of the Holders of a majority
in principal amount of the Outstanding Securities, delivered to the Trustee and
to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
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then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
If the instrument of acceptance by a successor Trustee required by Section
611 shall not have been delivered to the Trustee within 30 days after (i) the
giving of such notice of resignation or (ii) the removal of the Trustee by the
Company pursuant to a Board Resolution, the Trustee who has so resigned or been
removed may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any reason, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee (it being
understood that at any time there shall be only one Trustee) and shall comply
with the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
The Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee to all Holders of Securities
in the manner provided in Section 106. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee, every such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; provided that, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to
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such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee, with the prior written consent of the Company and after giving
notice of the appointment described in this Section 614 in the manner provided
in Section 106 to all Holders of Securities, may appoint an Authenticating Agent
or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 305, and the Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if
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authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Company's [ ]% Senior Subordinated Notes Due 2009
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, As Trustee
By ........................ ,
As Authenticating Agent
By ........................ ,
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Company To Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semiannually, not later than [ ] and [ ] in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities as of the preceding [ ] or
[ ], as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not merge or consolidate with or into any other entity
(other than a merger of a Restricted Subsidiary into the Company) or sell,
transfer, assign, lease, convey or otherwise dispose of all or substantially all
of its Property or assets in any one transaction or series of transactions
unless:
(a) the entity formed by or surviving any such consolidation or merger
(if the Company is not the surviving entity) or the Person to which such
sale, assignment, transfer, lease or conveyance is made (the "Surviving
Entity") shall be a corporation organized and existing under the laws of
the United States of America or a State thereof or the District of Columbia
and such corporation expressly assumes, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, the due and punctual payment of the principal of, premium, if
any, and interest on all the Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed by the Company;
(b) in the case of a sale, transfer, assignment, lease, conveyance or
other disposition of all or substantially all of the Company's Property or
assets, such Property or assets shall have been transferred as an entirety
or virtually as an entirety to one Person;
(c) immediately before and after giving effect to such transaction or
series of transactions, no Default or Event of Default shall have occurred
and be continuing;
(d) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness Incurred or anticipated to be Incurred in connection with such
transaction or series of transactions), the Company or the Surviving
Entity, as the case may be, would be able to Incur at least $1.00 of
additional Indebtedness under clause (a) of Section 1008;
(e) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness Incurred or anticipated to be Incurred in connection with such
transaction or series of transactions), the Company or the Surviving Entity
shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net
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Worth of the Company immediately prior to the transaction or series of
transactions; and
(f) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any sale, conveyance, transfer, assignment or lease of all
or substantially all of the Property or assets of the Company in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, assignment, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a sale, conveyance, assignment, transfer or lease of the
Property or assets of the Company, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto or otherwise amend this Indenture, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of the Securities or to surrender any right or power herein conferred upon the
Company; or
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(3) to add any additional Events of Default for the benefit of the Holders
of the Securities; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to secure the Securities pursuant to the requirements of Section 1009
or otherwise; or
(6) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee pursuant to the requirements of Section 611; or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (7) shall
not adversely affect the interests of the Holders of Securities in any
material respect; or
(8) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act; or
(9) to make any other change that does not adversely affect the interests
of any Holder of Securities in any material respect.
After an amendment under this Section becomes effective, the Company shall
mail to Holders of Securities a notice briefly describing such amendment. The
failure to give such notice to all Holders of Securities, or any defect therein,
shall not impair or affect the validity of an amendment under this Section.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto, amendments to this Indenture or waivers for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities under this Indenture; provided, however, that no such
supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of any Security which would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or alter the redemption or, except as provided in clause (5)
below, repurchase provisions with respect thereto, or change the coin or
currency in which any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption,
prepayment or Change of Control, on or after the Redemption Date, Purchase
Date or Change of Control Payment Date, respectively);
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 513 or Section
1018, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby;
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities or reduce the relative ranking of any
Securities in a manner adverse to Holders;
(5) following the mailing of a Prepayment Offer pursuant to Section 1012
or a Change of Control Offer pursuant to Section 1019, modify the provisions
of this Indenture with respect to such Prepayment Offer or Change of Control
Offer in a manner adverse in any material respect to such Holder; or
(6) release any security that may have been granted in respect of the
Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, waiver or supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
After an amendment under this Section becomes effective, the Company shall
mail to Holders of Securities a notice briefly describing such amendment. The
failure to give such notice to all Holders of Securities, or any defect therein,
shall not impair or affect the validity of an amendment under this Section.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Thirteen in any manner which might
terminate or impair the rights of the holders of Senior Indebtedness pursuant to
such subordination provisions without the consent of such holders.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture or amendment executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Payment for Consent.
Neither the Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee
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or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid to all Holders that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Securities that it
will duly and punctually pay the principal of and any premium and interest on
the Securities in accordance with the terms of the Securities and this
Indenture. Principal, premium, if any, and interest shall be considered paid on
the date due if on such date the Trustee or Paying Agent (other than the Company
or its Wholly Owned Subsidiaries) holds in accordance with this Indenture money
sufficient to pay all principal, premium, if any, and interest then due and the
Trustee or such Paying Agent, as the case may be, is not prohibited from paying
such money to the Holders of Securities on that date pursuant to the terms of
this Indenture.
SECTION 1002. Registrar and Paying Agent.
The Company shall maintain in The City of New York an office or agency
where Securities may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the Trust Indenture Act. Such agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain or act as Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 607. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar, co-registrar or
transfer agent.
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The Company initially appoints the Trustee as Registrar and Paying Agent in
connection with the Securities.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company or any of its Wholly Owned Subsidiaries shall at any time
act as Paying Agent, it will, on or before each due date of the principal of or
any premium or interest on any of the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or prior to each due date of the principal of or any
premium or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for the Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
The Trustee and the Paying Agent shall promptly pay to the Company upon
Company Request any money or securities held by them at any time in excess of
amounts required to pay principal of, premium, if any, or interest on the
Securities.
Any money deposited with the Trustee or any other Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security and remaining unclaimed for one year after such
principal, premium or
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interest has become due and payable may be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order 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
be necessary so that the business carried on in connection therewith may be
properly and advantageously
74
conducted at all times; provided, however, 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 Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. 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, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) 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 Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Limitation on Indebtedness.
The Company shall not, and it shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any Indebtedness unless, after
giving pro forma effect to the application of the proceeds thereof, no Default
or Event of Default would occur as a consequence of such Incurrence or be
continuing following such Incurrence and either (a) after giving pro forma
effect to the Incurrence of such Indebtedness and the receipt and application of
the proceeds thereof, the Consolidated Interest Coverage Ratio exceeds 2.5 to
1.0 or (b) such Indebtedness is Permitted Indebtedness.
SECTION 1009. Limitation on Liens.
The Company shall not, directly or indirectly, Incur any Lien on or with
respect to any Property of the Company, whether owned on the Issue Date or
acquired after the Issue Date, or any interest therein or any income or profits
therefrom, unless the Securities are secured equally and ratably with (or prior
to) any and all other obligations secured by such Lien, except that the Company
may without restriction Incur Liens securing Senior Indebtedness and the
following "Permitted Liens":
(a) Liens existing as of the Issue Date;
(b) any Lien existing on any Property of a Person at the time such Person
is merged or consolidated with or into the Company (and not Incurred in
anticipation of
75
such transaction), provided that such Liens are not extended to other Property
of the Company;
(c) any Lien existing on any Property at the time of the acquisition
thereof (and not Incurred in anticipation of such transaction), provided that
such Liens are not extended to other Property of the Company;
(d) Liens securing the Securities and other obligations arising under this
Indenture;
(e) Liens to secure any permitted extension, renewal, refinancing,
refunding or exchange (or successive extensions, renewals, refinancings,
refundings or exchanges), in whole or in part, of or for any Indebtedness
secured by Liens referred to in clauses (a) through (d) of this Section 1009;
provided, however, that (i) such new Lien shall be limited to all or part of the
same Property that secured the original Lien, plus improvements on such Property
and (ii) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (A) the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Liens described under
clauses (a) through (d) of this Section 1009 at the time the original Lien
became a Lien permitted in accordance with the Indenture and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement;
(f) any Lien incidental to the normal conduct of the business of the
Company, the ownership of its property or the conduct in the ordinary course of
its business (including, without limitation, (i) easements, rights of way and
similar encumbrances, (ii) rights of lessees under leases, (iii) rights of
collecting banks having rights of setoff, revocation, refund or chargeback with
respect to money or instruments of the Company or on deposit with or in the
possession of such banks, (iv) Liens imposed by law, including, without
limitation, Liens under workers' compensation or similar legislation and
mechanics', carriers', warehousemen's, materialmen's, suppliers' and vendors'
Liens, (v) Oil and Gas Liens, and (vi) Liens Incurred to secure performance of
obligations with respect to statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of a like nature and
Incurred in a manner consistent with industry practice) in each case which are
not Incurred in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of Property and
which do not in the aggregate impair in any material respect the use of Property
in the operation of the business of the Company and its Restricted Subsidiaries
taken as a whole;
(g) Liens for taxes not yet due or which are being contested in good faith
by appropriate proceedings, so long as reserves have been established to the
extent required by U.S. GAAP as in effect at such time;
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(h) Liens incurred to secure appeal bonds and judgment and attachment
Liens, in each case in connection with litigation or legal proceedings that are
being contested in good faith by appropriate proceedings, so long as reserves
have been established to the extent required by U.S. GAAP as in effect at such
time and so long as such Liens do not encumber assets by an amount in excess of
$20 million;
(i) Liens securing Hedging Agreements, so long as such Hedging Agreements
are permitted under Section 1008;
(j) Liens in connection with Sale and Leaseback Transactions permitted
pursuant to Section 1008;
(k) Liens resulting from a pledge of Capital Stock of a Person that is not
a Restricted Subsidiary to secure obligations of such Person and any refinancing
thereof; and
(l) Liens resulting from the deposit of funds or evidences of Indebtedness
in trust for the purpose of decreasing Indebtedness of the Company or any of its
Subsidiaries so long as such deposit of funds is permitted under Section 1010.
SECTION 1010. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment if, at the
time of and after giving effect to the proposed Restricted Payment:
(a) any Default or Event of Default would have occurred and be continuing;
(b) the Company could not Incur at least $1.00 of additional Indebtedness
pursuant to clause (a) of Section 1008; or
(c) the aggregate amount expended or declared for all Restricted Payments
from December 20, 1995 would exceed the sum of (i) $25 million, (ii) 100% of the
aggregate net cash proceeds or the Fair Market Value of Property other than cash
received by the Company on or subsequent to December 20, 1995, from capital
contributions to the Company (other than from a Subsidiary of the Company) and
from the issuance or sale (other than to a Subsidiary of the Company) of Capital
Stock of the Company, including Capital Stock of the Company issued upon
conversion of convertible debt or convertible Redeemable Stock and upon the
exercise of options, warrants or rights to purchase Capital Stock of the
Company, (iii) 50% of the aggregate Consolidated Net Income of the Company (or,
if Consolidated Net Income shall be a deficit, less 100% of such deficit)
subsequent to September 30, 1995, and ending on the last day of the fiscal
quarter ending on or immediately preceding the date of such Restricted Payment,
and (iv) an amount equal to the net reduction in
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Investments made by the Company and its Restricted Subsidiaries subsequent to
December 20, 1995 in any Person resulting from (A) payments of interest on debt,
dividends, repayment of loans or advances, or other transfers or distributions
of Property (but only to the extent the Company excludes such transfers or
distributions from the calculation of Consolidated Net Income for purposes of
clause (iii) above), in each case to the Company or any Restricted Subsidiary
from any Person, or (B) the redesignation of any Unrestricted Subsidiary as a
Restricted Subsidiary, not to exceed, in the case of (A) or (B), the amount of
such Investments previously made in such Person or such Unrestricted Subsidiary,
as the case may be, which were treated as Restricted Payments.
Any payments made pursuant to clauses (a) through (i) of the definition of
Permitted Investments shall be excluded for purposes of any calculation of the
aggregate amount of Restricted Payments. Any payments made pursuant to clause
(j) of the definition of Permitted Investments shall be included for purposes of
any calculation of the aggregate amount of Restricted Payments.
The foregoing limitations do not prevent the Company or any Restricted
Subsidiary from (a) paying a dividend on its Capital Stock within 60 days after
declaration thereof if, on the declaration date, such dividend could have been
paid in compliance with the Indenture, or (b) making Permitted Investments so
long as no Default or Event of Default shall have occurred and be continuing.
SECTION 1011. Limitation on Issuance and Sale of Capital Stock of Restricted
Subsidiaries.
The Company will not (a) permit any Restricted Subsidiary to issue any
Capital Stock other than to the Company or one of its Wholly Owned Subsidiaries
or (b) permit any Person other than the Company or a Restricted Subsidiary to
own any Capital Stock of any other Restricted Subsidiary (other than directors'
qualifying shares), except, in each case, for (i) a sale of the Capital Stock of
a Restricted Subsidiary owned by the Company or its Restricted Subsidiaries
effected in accordance with Section 1012, (ii) the issuance of Capital Stock by
a Restricted Subsidiary to a Person other than the Company or a Restricted
Subsidiary and (iii) the Capital Stock of a Restricted Subsidiary owned by a
Person at the time such Restricted Subsidiary became a Restricted Subsidiary or
acquired by such Person in connection with the formation of the Restricted
Subsidiary, or transfers thereof; provided, that any sale or issuance of Capital
Stock of a Restricted Subsidiary shall be deemed to be an Asset Sale to the
extent the percentage of the total outstanding Voting Stock of such Restricted
Subsidiary owned directly and indirectly by the Company is reduced as a result
of such sale or issuance; provided, further, that if a Person whose Capital
Stock was issued or sold in a transaction described under this Section 1011 is,
as a result of such transaction, no longer a Restricted Subsidiary, then the
Fair Market Value of
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Capital Stock of such Person retained by the Company and the other Restricted
Subsidiaries shall be treated as an Investment for purposes of Section 1010.
SECTION 1012. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, consummate any Asset Sale after the Issue Date, unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the shares
and assets subject to such Asset Sale and (ii) all of the consideration paid to
the Company or such Restricted Subsidiary in connection with such Asset Sale is
in the form of cash, cash equivalents, Liquid Securities, or the assumption by
the purchaser of liabilities of the Company (other than liabilities of the
Company that are by their terms subordinated to the Securities) or any
Restricted Subsidiary as a result of which the Company and its remaining
Restricted Subsidiaries are no longer liable; provided, however, that (x) the
Fair Market Value of Exchanged Properties shall be treated as cash for purposes
of this clause (ii) and (y) the Company and its Restricted Subsidiaries shall be
permitted to receive property and securities other than cash, cash equivalents,
Exchanged Properties or Liquid Securities, so long as the aggregate Fair Market
Value of all such property and securities received in Asset Sales held by the
Company or any Restricted Subsidiary at any one time shall not exceed 10% of
Adjusted Consolidated Net Tangible Assets.
(b) The Net Available Cash from Asset Sales may be applied by the Company
or a Restricted Subsidiary, to the extent the Company or such Restricted
Subsidiary elects (or is required by the terms of any Senior Indebtedness), (A)
to prepay, repay or purchase Senior Indebtedness or Indebtedness of a Restricted
Subsidiary (in each case excluding Indebtedness owed to the Company or an
Affiliate of the Company); (B) to reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary); or (C)
if there are no 9% Notes outstanding, to purchase Securities (excluding
Securities owned by the Company or an Affiliate of the Company).
(c) Any Net Available Cash from an Asset Sale not applied in accordance
with the preceding paragraph within 365 days from the date of such Asset Sale
shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $10 million, the Company will be required to comply with the applicable
provisions of the 9% Indenture to make a prepayment offer to purchase on a pro
rata basis, from all holders of the 9% Notes, an aggregate principal amount of
9% Notes equal to the Excess Proceeds, at a price in cash not in excess of 100%
of the outstanding principal amount thereof plus accrued interest, if any. To
the extent that any portion of the amount of such Excess Proceeds remains after
compliance with the preceding sentence, such amount shall constitute "Remaining
Excess Proceeds" held for the benefit of the holders of the Securities and any
then outstanding Pari Passu
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Indebtedness (other than the 9% Notes) and the amount of Excess Proceeds
will be reset to zero. When the aggregate amount of Remaining Excess Proceeds
exceeds $10 million, the Company will be required to make an offer to purchase
(the "Prepayment Offer"), on a pro rata basis, the Securities and any then
outstanding Pari Passu Indebtedness (other than the 9% Notes), at a purchase
price of at least 100% of their principal amount plus accrued and unpaid
interest thereon (if any) to the Purchase Date. Such Prepayment Offer with
respect to the Securities shall be made in accordance with the procedures
(including prorating in the event of oversubscription) set forth herein. If the
aggregate principal amount of Securities surrendered for purchase by Holders
thereof exceeds the pro rata amount of Remaining Excess Proceeds allocated for
the purchase thereof, then the Trustee shall select the Securities to be
purchased pro rata according to principal amount with such adjustments as may be
deemed appropriate by the Company so that any Securities in denominations of
$1,000, or integral multiples thereof, shall be purchased. To the extent that
any portion of the amount of Remaining Excess Proceeds remains after compliance
with the preceding sentence and provided that all Holders of Securities have
been given the opportunity to tender their Securities for purchase as described
in the following paragraph in accordance with the Indenture, the Company or such
Restricted Subsidiary may use such remaining amount for general corporate
purposes and the amount of Remaining Excess Proceeds will be reset to zero.
(d) Within five Business Days after the later of (i) 365 days from the date
of an Asset Sale and (ii) the completion of any offer for the 9% Notes required
by the 9% Indenture, the Company shall, if it is obligated to apply an amount
equal to any Remaining Excess Proceeds (or any portion thereof) to fund an offer
to purchase the Securities, send a Prepayment Offer Notice to the Holders of
Securities. The Company shall notify the Trustee at least 15 Business Days (or
such shorter period as is acceptable to the Trustee) prior to the mailing of the
Prepayment Offer Notice of the Company's obligation to make a Prepayment Offer,
and the Prepayment Offer Notice shall be mailed by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
The Company will comply, to the extent applicable, with the requirements of
Rules 13e-4 and 14e-1 under the Exchange Act and any other securities laws or
regulations thereunder to the extent such laws and regulations are applicable in
connection with the purchase of Securities as described above. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions relating to the Prepayment Offer, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations described above by virtue thereof.
Notwithstanding the foregoing provisions of this clause (d), if any
Security (or any portion thereof) accepted for payment shall not be so paid
pursuant to the provisions described in the preceding paragraph, then, from the
Purchase Date until the date on which the principal of and premium (if any) and
interest on such Security is
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paid, interest shall be paid on the unpaid principal and premium (if any) and,
to the extent permitted by law, on any accrued but unpaid interest thereon, in
each case, at the rate borne by such Security.
SECTION 1013. Incurrence of Layered Indebtedness.
The Company shall not Incur any Indebtedness which is subordinate or junior
in right of payment to any Senior Indebtedness unless such Indebtedness
constitutes Indebtedness which is junior to, or pari passu with, the Securities
in right of payment.
SECTION 1014. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, conduct any business or enter into any
transaction or series of transactions (including, but not limited to, the sale,
transfer, disposition, purchase, exchange or lease of Property, the making of
any Investment, the giving of any Guarantee or the rendering of any service)
with or for the benefit of any Affiliate of the Company, unless (a) such
transaction or series of transactions is in the best interest of the Company or
such Restricted Subsidiary, (b) such transaction or series of transactions is on
terms no less favorable to the Company or such Restricted Subsidiary than those
that could be obtained in a comparable arm's-length transaction with a Person
that is not an Affiliate of the Company or such Restricted Subsidiary, and (c)
with respect to a transaction or series of transactions involving aggregate
payments by or to the Company or such Restricted Subsidiary having a Fair Market
Value equal to or in excess of (i) $5.0 million but less than $20.0 million,
the Board of Directors (including a majority of the disinterested members of the
Board of Directors) approves such transaction or series of transactions and, in
its good faith judgment, believes that such transaction or series of
transactions complies with clauses (a) and (b) of this paragraph as evidenced by
a Board Resolution or (ii) $20.0 million, (A) the Company receives from an
independent, nationally recognized investment banking firm or appraisal firm, in
either case specializing or having a specialty in the type and subject matter of
the transaction (or series of transactions) at issue, a written opinion that
such transaction (or series of transactions) is fair, from a financial point of
view, to the Company or such Restricted Subsidiary and (B) the Board of
Directors (including a majority of the disinterested members of the Board of
Directors) approves such transaction or series of transactions and, in its good
faith judgment, believes that such transaction or series of transactions
complies with clauses (a) and (b) of this paragraph, as evidenced by a Board
Resolution.
The limitations of the preceding paragraph do not apply to (a) the payment
of reasonable and customary regular fees to directors of the Company or any of
its Restricted Subsidiaries who are not employees of the Company or any of its
Restricted Subsidiaries, (b) indemnities of officers and directors of the
Company or any
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Subsidiary consistent with such Person's bylaws and applicable statutory
provisions, (c) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Restricted Subsidiary, (d) loans
made (i) to officers and directors of the Company or any Subsidiary approved by
the Board of Directors (or by a duly authorized officer), the proceeds of which
are used solely to exercise stock options received pursuant to an employee stock
option plan or other incentive plan, in a principal amount not to exceed the
exercise price of such stock options or (ii) to refinance loans, together with
accrued interest thereon, made pursuant to this clause (d), (e) advances and
loans to officers and directors of the Company or any Subsidiary in the ordinary
course of business, provided such loans and advances do not exceed $3.0 million
at any one time outstanding, or (f) transactions with Restricted Subsidiaries.
SECTION 1015. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, assume or otherwise cause or
suffer to exist or become effective, or enter into any agreement with any Person
that would cause to become effective, any consensual encumbrance or restriction
on the legal right of any Restricted Subsidiary (other than a Foreign
Subsidiary) to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock or Redeemable Stock held by
the Company or a Restricted Subsidiary, (b) pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary, (c) make any
loans or advances to the Company or any other Restricted Subsidiary or (d)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary. Such limitation will not apply (1) with respect to clauses (c) and
(d) only, to encumbrances and restrictions (i) in existence under or by reason
of any agreements in effect on the Issue Date, (ii) required by Bank Credit
Facilities that are not more restrictive than those in effect under the Bank
Credit Facility on the Issue Date, (iii) existing at such Restricted Subsidiary
at the time it became a Restricted Subsidiary if (A) such encumbrance or
restriction was not created in anticipation of such acquisition and (B)
immediately following such acquisition, on a pro forma basis, the Company could
incur at least $1.00 of additional Indebtedness pursuant to clause (a) of
Section 1008 or (iv) which result from the renewal, refinancing, extension or
amendment of an agreement referred to in the immediately preceding clauses (i),
(ii) and (iii) above, provided, such replacement or encumbrance or restriction
is no more restrictive to the Company or Restricted Subsidiary and is not
materially less favorable to the Holders of Securities than those under or
pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced, and (2) with respect to clause (d) only, to (i) any
restriction on the sale, transfer or other disposition of assets or Property
securing Indebtedness as a result of a Lien permitted under Section 1009, (ii)
any encumbrance or restriction in connection with an acquisition of
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Property, so long as such encumbrance or restriction relates solely to the
Property so acquired and was not created in connection with or in anticipation
of such acquisition, (iii) customary provisions restricting subletting or
assignment of leases and customary provisions in other agreements that restrict
assignment of such agreements or rights thereunder, (iv) any encumbrance or
restriction due to applicable law, (v) customary restrictions contained in asset
sale agreements limiting the transfer of such assets pending the closing of such
sale and (vi) restrictions contained in purchase money obligations for Property
acquired in the ordinary course of business with respect to transfers of such
Property.
SECTION 1016. Restricted and Unrestricted Subsidiaries.
Unless defined or designated as an Unrestricted Subsidiary, any Person that
becomes a Subsidiary of the Company or any of its Restricted Subsidiaries shall
be classified as a Restricted Subsidiary subject to the provisions of the next
paragraph. The Company may designate a Subsidiary (including a newly formed or
newly acquired Subsidiary) of the Company or any of its Restricted Subsidiaries
as an Unrestricted Subsidiary if (i) such Subsidiary does not own any Capital
Stock, Redeemable Stock or Indebtedness of, or own or hold any Lien on any
property of, the Company or any other Restricted Subsidiary, (ii) such
Subsidiary does not have any Indebtedness or other obligations which, if in
Default, would result (with the passage of time or notice or otherwise) in a
default on any Indebtedness of the Company or any Restricted Subsidiary and
(iii)(A) such designation is effective immediately upon such Subsidiary becoming
a Subsidiary of the Company or of a Restricted Subsidiary, (B) the Subsidiary to
be so designated has total assets of $1,000 or less or (C) if such Subsidiary
has assets greater than $1,000, then such redesignation as an Unrestricted
Subsidiary is deemed to constitute a Restricted Payment in an amount equal to
the Fair Market Value of the Company's direct and indirect ownership interest in
such Subsidiary, and such Restricted Payment would be permitted to be made at
the time of such designation under Section 1010. Except as provided in clauses
(iii)(B) and (C) of this paragraph, no Restricted Subsidiary may be redesignated
as an Unrestricted Subsidiary. The designation of an Unrestricted Subsidiary or
removal of such designation shall be made by the Board of Directors pursuant to
a Board Resolution and shall be effective as of the date specified in the
applicable certified resolution, which shall not be prior to the date such
certified resolution is delivered to the Trustee.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, take any action or enter into any transaction or series of
transactions that would result in a Person becoming a Restricted Subsidiary
(whether through an acquisition or otherwise) unless, after giving effect to
such action, transaction or series of transactions, on a pro forma basis, (i)
the Company could Incur at least $1.00 of additional Indebtedness pursuant to
clause (a) of Section 1008 and (ii) no Default or Event of Default would occur
or be continuing.
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SECTION 1017. Commission Reports.
The Company shall file with the Trustee and provide Holders of Securities,
within 15 days after it files them with the Commission, copies of its annual
report and the information, documents and other reports which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, and, with respect to the annual consolidated financial statements
only, a report thereon by the Company's independent auditors. Notwithstanding
that the Company may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
continue to file with the Commission and provide the Trustee and Holders of
Securities with the annual reports and the information, documents and other
reports which are specified in Sections 13 and 15(d) of the Exchange Act, and,
with respect to the annual consolidated financial statements only, a report
thereon by the Company's independent auditors. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates). The Company also shall comply with the other
provisions of (S) 314(a) of the Trust Indenture Act.
SECTION 1018. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to Sections
901(2) for the benefit of the Holders or in any of Sections 1008 through 1017
(second sentence only), inclusive, if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
shall, by Act of such Holders and on behalf of the Holders of all Securities,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1019. Mandatory Repurchase Upon a Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will, in
accordance with Section 1019(b), notify each Holder, with a copy of such notice
to the Trustee, in writing of the occurrence of a Change of Control and
accompanying such notice will be an offer to purchase the Securities (a "Change
of Control Offer") at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon to the date of purchase.
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(b) Within 30 days following any Change of Control, the Company shall mail
a notice to each Holder stating: (1) that a Change of Control has occurred and a
Change of Control Offer is being made pursuant to this Section and that all
Securities (or portions thereof) timely tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be, subject to any
contrary requirements of applicable law, no earlier than 30 days nor later than
60 days from the date such notice is mailed (the "Change of Control Payment
Date"); (3) that any Security (or portion thereof) accepted for payment (and
duly paid on the Change of Control Payment Date) pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date; (4) that any Securities (or portions thereof) not tendered will continue
to accrue interest; (5) a description of the transaction or transactions
constituting the Change of Control; (6) the procedures that Holders of
Securities must follow in order to tender their Securities (or portions thereof)
for payment and the procedures that Holders of Securities must follow in order
to withdraw an election to tender Securities (or portions thereof) for payment;
and (7) that in case of any Holder whose Security is purchased only in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
(c) On or prior to the Change of Control Payment Date, the Company shall
irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company
or any of its Wholly Owned Subsidiaries is acting as Paying Agent, segregate and
hold in trust) in cash an amount equal to the purchase price plus accrued and
unpaid interest, if any, payable to the Holders entitled thereto, to be held for
payment in accordance with the provisions of this Section. Holders electing to
have a Security (or portion thereof) purchased will be required to surrender the
Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least five Business Days prior to the Change of
Control Payment Date. Holders will be entitled to withdraw their election if
the Trustee or the Company receives not later than three Business Days prior to
the Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security which was delivered for purchase by the Holder and a statement that
such Holder is withdrawing his election to have such Security (or portion
thereof) purchased.
(d) On the Change of Control Payment Date, the Company shall deliver to
the Trustee the Securities or portions thereof which have been properly tendered
to and are to be accepted by the Company for payment. The Trustee shall, on the
Change of Control Payment Date, mail or deliver payment to each tendering Holder
of the purchase price. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the amount
deposited with the Trustee, the Trustee shall deliver the excess to the Company
immediately after the Change of Control Payment Date.
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(e) The Company will comply, to the extent applicable, with the
requirements of Rules 13e-4 and 14e-1 under the Exchange Act, and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of Securities in
connection with a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions relating to the
Change of Control Offer, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
described above by virtue thereof.
Notwithstanding the foregoing provisions of this Section, if any Security
(or any portion thereof) accepted for payment shall not be so paid pursuant to
the provisions described in paragraph (d), then, from the Change of Control
Payment Date until the date on which the principal of and premium (if any) and
interest on such Security is paid, interest shall be paid on the unpaid
principal and premium (if any) and, to the extent permitted by law, on any
accrued but unpaid interest thereon, in each case, at the rate borne by such
Security.
SECTION 1020. Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company
of (i) less than all the Securities (including any such redemption affecting
only a single Security), the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company or (ii) all the Securities, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company (in
either case, unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed.
SECTION 1102. Selection by Trustee of Securities To Be Redeemed.
If less than all the Securities are to be redeemed (unless such redemption
affects only a single security), the particular Securities to be redeemed shall
be selected not
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more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Security,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1103. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number) and state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities consisting of more than a
single Security are to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the Outstanding
Securities consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date, and
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1104. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or any of its Wholly Owned
Subsidiaries is acting as Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date. Upon
Company Order, the Paying Agent shall promptly return to the Company any money
so deposited which is not required for such purpose.
SECTION 1105. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest or the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
306.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
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SECTION 1106. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1107. Purchase of Securities.
The Company shall have the right at any time and from time to time to
purchase Securities in the open market or otherwise at any price.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Defeasance and Discharge.
The Company shall be deemed to have been discharged from its obligations,
and the provisions of Article Thirteen shall cease to be effective, with respect
to the Securities as provided in this Section on and after the date the
conditions set forth in Section 1203 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the
Securities and to have satisfied all its other obligations under the Securities
and this Indenture insofar as the Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of the Securities to
receive, solely from the trust fund described in Section 1203 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on the Securities when payments are due, (2) the Company's
obligations with respect to the Securities under Sections 303, 304, 305, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1202 applied to the Securities.
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SECTION 1202. Covenant Defeasance.
(1) The Company shall be released from its obligations under Sections 1007
through 1016, inclusive, and 1019, and Sections 801(d) and 801(e), and any
covenants provided pursuant to Section 901(2) for the benefit of the Holders of
the Securities, (2) the occurrence of any event specified in Sections 501(3)
(with respect to any of Sections 801(d) and 801(e), Sections 1007 through 1016,
inclusive, and 1019, and any such covenants provided pursuant to Section
901(2)), 501(4) and 501(5) shall be deemed not to be or result in an Event of
Default and (3) the provisions of Article Thirteen shall cease to be effective,
in each case with respect to the Securities as provided in this Section on and
after the date the conditions set forth in Section 1203 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to the Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(3)) or Article Thirteen, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provision herein or in any other document, but the remainder of this
Indenture and the Securities shall be unaffected thereby.
SECTION 1203. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1201 or
Section 1202 to the Securities:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of the Securities, money in an amount, or U.S.
Government Obligations, or a combination thereof, which through the payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in
an amount, in each case sufficient, in the opinion of a United States
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the principal
of and any premium and interest on the Securities at Stated Maturity or on
earlier redemption in accordance with the terms of this Indenture and the
Securities.
(2) With respect to Section 1201, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(ii) since the date of this Indenture there has been a change in the
applicable Federal income
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tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to the Securities and
will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit, Defeasance
and discharge were not to occur.
(3) With respect to Section 1202, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Securities
will not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to the
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No Default shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6) and
501(7), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any Senior
Indebtedness shall have resulted in such Senior Indebtedness becoming, and
continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior
Indebtedness has been made or duly
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provided for), (C) no other event of default with respect to any Senior
Indebtedness shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Indebtedness (or a trustee
on behalf of such holders) to declare such Senior Indebtedness due and payable
prior to the date on which it would otherwise have become due and payable and
(D) the Company is not prohibited from making such deposit for such purpose
pursuant to the terms of this Indenture.
(10) If the Securities are to be redeemed prior to their Stated Maturity,
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(11) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1204. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1203 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent as the Trustee may determine, to the Holders of the
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1203 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1203 with
respect to any Securities which, in the opinion of a United States nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to the Securities.
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SECTION 1205. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and the Securities from which the Company has been discharged or
released pursuant to Section 1201 or 1202 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to the
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1204 with respect to the Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any Security following
such reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of the Securities to receive such payment from
the money so held in trust.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Agreement to Subordinate.
The Company covenants and agrees, and each Holder by accepting a Security
agrees, that the Indebtedness evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article
Thirteen (subject to the provisions of Articles Four and Twelve), to the prior
payment of all Senior Indebtedness and that the subordination is for the benefit
of and enforceable by the holders of Senior Indebtedness. The Securities shall
in all respects rank pari passu with all other existing and future senior
subordinated Indebtedness of the Company (including, without limitation, the 9%
Notes) and only Indebtedness of the Company which is Senior Indebtedness shall
rank senior to the Securities in accordance with the provisions set forth
herein. All provisions of this Article Thirteen shall be subject to Section
1312.
SECTION 1302. Liquidation, Dissolution and Bankruptcy.
Upon any payment or distribution of the assets of the Company to creditors
upon a total or partial liquidation, dissolution or winding up of the Company or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property (each such event, if any, herein
sometimes referred to as a "Proceeding"):
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(1) holders of Senior Indebtedness shall be entitled to receive payment in
full in cash of the Senior Indebtedness before Holders shall be entitled to
receive any payment of principal of, or premium, if any, or interest on the
Securities; and
(2) until the Senior Indebtedness is paid in full in cash, any
distribution to which Holders would be entitled but for this Article Thirteen
shall be made to holders of Senior Indebtedness as their interests may appear,
except that Holders may receive and retain shares of stock and any debt
securities that are subordinated to Senior Indebtedness to at least the same
extent as the Securities.
For purposes of this Section "paid in full" or "payment in full", as used with
respect to Senior Indebtedness, means the receipt of cash in payment of the
principal amount of the Senior Indebtedness and premium, if any, and interest
thereon (including any interest thereon accruing after the commencement of any
Proceeding) to the date of such payment.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
sale, conveyance, assignment, lease or transfer of all or substantially all of
its Property or assets to another Person upon the terms and conditions set forth
in Article Eight shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, conveyance, assignment, lease or
transfer such Property or assets, as the case may be, shall, as a part of such
consolidation, merger, sale, conveyance, assignment, lease or transfer, comply
with the conditions set forth in Article Eight.
SECTION 1303. Default on Senior Indebtedness.
The Company may not pay the principal of, premium, if any, or interest on,
the Securities or make any deposit pursuant to Sections 1203 or 401 and may not
repurchase, redeem or otherwise retire any Securities (collectively, "pay the
Securities") if (a) any principal, premium or interest in respect of Senior
Indebtedness is not paid when due (after giving effect to any applicable grace
period), including at maturity, or (b) any other default on Senior Indebtedness
occurs and the maturity of such Senior Indebtedness is accelerated in accordance
with its terms unless, in either case, the default has been cured or waived and
any such acceleration has been
rescinded or such Senior Indebtedness has been paid in full; provided, however,
that the Company may pay the Securities without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (a) or (b)
of the preceding sentence) with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration), the Company may
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not pay the Securities for a period (a "Payment Blockage Period") commencing
upon the receipt by the Company and the Trustee of written notice of such
default from the Representative of the holders of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a
"Payment Blockage Notice") and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee and
the Company from the Representative which gave such Payment Blockage Notice,
(ii) because the default specified in such Payment Blockage Notice is no longer
continuing or (iii) because such Designated Senior Indebtedness has been repaid
in full). Notwithstanding the provisions described in the immediately preceding
sentence, unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness and not rescinded such acceleration, the Company
may resume payment on the Securities after the end of such Payment Blockage
Period (unless otherwise prohibited pursuant to the first sentence of this
Section). Not more than one Payment Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to any number of issues of Designated Senior Indebtedness during such period.
SECTION 1304. Acceleration of Payment of Securities.
If payment of the Securities is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the Representative of each
issue of Designated Senior Indebtedness of the acceleration. The Company may not
pay the Securities until five days after such notice is received and,
thereafter, may pay the Securities only if this Article Thirteen otherwise
permits the payment at that time.
SECTION 1305. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this Article Thirteen
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 1306. Subrogation.
After all Senior Indebtedness is paid in full and until the Securities are
paid in full, the Holders shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article Thirteen to holders of Senior Indebtedness
which otherwise would have been made to Holders is not, as between the Company
and Holders, a payment by the Company on Senior Indebtedness.
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SECTION 1307. Relative Rights.
This Article Thirteen defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of, premium, if
any, and interest on the Securities in accordance with their terms; or
(2) except as set forth in Section 1304, prevent the Trustee or any Holder
from exercising its available remedies upon a Default, subject to the rights
of holders of Senior Indebtedness to receive distributions otherwise payable
to Holders.
SECTION 1308. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the subordination
of the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 1309. Rights of Trustee and Paying Agent.
Notwithstanding Section 1303 (but subject to Section 1305), the Trustee or
Paying Agent may continue to make payments on the Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making
of any such payments unless, not less than two Business Days prior to the date
of such payment, a Trust Officer of the Trustee receives notice satisfactory to
it that payments may not be made under this Article Thirteen. The Company, the
Security Registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness may give the notice; provided, however, that, if an issue of Senior
Indebtedness has a Representative, only the Representative may give the notice.
SECTION 1310. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 1311. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
Four
96
or Twelve by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article Thirteen,
and none of the Holders or the Trustee shall be obligated to pay over any such
amount to the Company or any holder of Senior Indebtedness of the Company or any
other creditor of the Company or any Representative.
SECTION 1312. Trustee Entitled To Rely.
Upon any payment or distribution pursuant to this Article Thirteen, the
Trustee and the Holders shall be entitled to rely (i) upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 1302 are pending, (ii) upon a certificate of the
liquidating trustee, receiver, trustee in bankruptcy or agent or other Person
making such payment or distribution to the Trustee or to the Holders or (iii)
upon the Representatives for the holders of Senior Indebtedness or such holders
if there is no Representative with respect to any Senior Indebtedness, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the event that the Trustee determines, in good faith, that evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article Thirteen, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
601 and 603 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article Thirteen.
SECTION 1313. Trustee To Effectuate Subordination.
Each Holder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Holders and the holders of Senior
Indebtedness as provided in this Article Thirteen and appoints the Trustee as
attorney-in-fact for any and all such purposes.
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SECTION 1314. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders or the Company or any other Person,
money or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Thirteen or otherwise. With respect to the holders of
Senior Indebtedness, the Trustee undertakes to perform or to observe only such
of its covenants or obligations as are specifically set forth in this Article
Thirteen and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 1315. Reliance by Holders of Senior Indebtedness on Subordination
Provisions.
Each Holder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
SECTION 1316. Proofs of Claim.
In the event that the Company is subject to any proceeding under any
bankruptcy, insolvency or analogous laws and the Holders and the Trustee fail to
file any proof of claim permitted to be filed in such proceeding with respect to
the Securities, then any Representative of Senior Indebtedness or any holder
thereof if there is no Representative therefor may file such proof of claim no
earlier than the later of (i) the expiration of 15 days after such
Representative notified the Trustee and the Company of its intention to do so
and (ii) 30 days preceding the last day it is permitted to file such claim.
SECTION 1317. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
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Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1318. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
neither Section 1309 nor Section 1312 shall apply to the Company or any Wholly
Owned Subsidiary if it or such Wholly Owned Subsidiary acts as Paying Agent.
SECTION 1319. Defeasance of this Article Thirteen.
The subordination of the Securities provided by this Article Thirteen is
expressly made subject to the provisions for Defeasance or Covenant Defeasance
in Article Twelve hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such Defeasance or Covenant Defeasance, the
Securities then outstanding shall thereupon cease to be subordinated pursuant to
this Article Thirteen.
ARTICLE FOURTEEN
CONCERNING THE HOLDERS
SECTION 1401. Identification of Company-Owned Securities.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any Affiliate of the
Company or any other obligor on the Securities; and, subject to the provisions
of Section 601, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 1402. Revocation of Consents.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 104, of the taking of any action by the Holders of the
percentage in
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aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security, except as provided in
Section 104 with respect to record dates, the serial number of which is shown by
the evidence to be included in the Securities the Holders of which have
consented to or are bound by consents to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding
as provided in Section 104, revoke such action so far as concerns such Security.
ARTICLE FIFTEEN
HOLDERS' MEETINGS
SECTION 1501. Purposes of Meetings.
A meeting of Holders of Securities may be called at any time and from time
to time pursuant to the provisions of this Article Fifteen for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Default
hereunder and its consequences, or to take any other action authorized to be
taken by Holders of Securities pursuant to any of the provisions of Article
Five;
(2) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Six;
(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Securities under
any other provision of this Indenture or under applicable law.
SECTION 1502. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Securities to take
any action specified in Section 1501, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to all Holders of Securities at
their addresses as they shall appear on the Security Register. Such notice shall
be mailed not less than 20 nor more than 180 days prior to the date fixed for
the meeting (or, in the case of a meeting of Holders
100
with respect to the Securities all or part of which are represented by a Global
Security, not less than 20 nor more than 40 days).
Upon the calling of a meeting of Holders with respect to the Securities all
or part of which are represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Securities entitled to vote
at such meeting, which record date shall be the close of business on the day the
Trustee mails the notice of the Meeting of Holders. The Holders on such record
date, and their designated proxies, and only such Persons, shall be entitled to
vote at such meeting of Holders.
SECTION 1503. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders, or their designated proxies, of at least 25% in
aggregate principal amount of the Outstanding Securities, shall have requested
the Trustee to call a meeting of the Holders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the time
and the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 1501, by mailing notice thereof
as provided in Section 1502.
SECTION 1504. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more Securities; provided, however,
that in the case of any meeting of Holders with respect to the Securities all or
part of which are represented by a Global Security, only Holders, or their
designated proxies, of record of Outstanding Securities on the record date
established pursuant to Section 1502 hereof shall be entitled to vote at such
meeting. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1505. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such
101
other matters concerning the conduct of the meeting as it shall think fit.
Except as otherwise permitted or required by any such regulation, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in said Section
104 or by having the signature of the Person executing the proxy witnessed or
guaranteed.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman and a temporary secretary of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section 1503, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman and a temporary secretary. A
permanent chairman and a permanent secretary of the meeting shall be elected by
the Persons holding or representing a majority of the Outstanding Securities
represented at the meeting.
Subject to the provisions of Section 1504, at any meeting each Holder or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the permanent chairman (or the temporary chairman, if
no permanent chairman shall have been elected pursuant to this Section) of the
meeting to be not Outstanding. Neither the temporary chairman nor the permanent
chairman of the meeting shall have a right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the Person to vote on behalf of other Holders. Any meeting of Holders
duly called pursuant to the provisions of Section 1502 or 1503 may be adjourned
from time to time by the Persons holding or representing a majority of the
Securities represented at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
At any meeting of the Holders of Securities a quorum shall consist of
Holders present in person or by proxy and representing at least 25% in principal
amount of the Outstanding Securities. If a quorum of the Holders of Securities
shall not be present within 30 minutes from the time fixed for holding any
meeting, the meeting, if summoned by the Holders or pursuant to a request of the
Holders, shall be dissolved; but in any other case the meeting shall be
adjourned to the same day in the next week (unless such day is a Legal Holiday
in which case it shall be adjourned to the next following day thereafter that is
not a Legal Holiday) at the same time and place and no notice shall be required
to be given in respect of such adjourned meeting. At the adjourned meeting the
Holders of Securities present in person or by proxy shall form a quorum and may
transact the business for which the meeting was originally convened
notwithstanding that they may not represent 25% of the principal amount of the
Outstanding Securities.
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SECTION 1506. Voting.
The vote upon any resolutions submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders of
Securities or of their representatives by proxy. The permanent chairman (or the
temporary chairman, if no permanent chairman shall have been elected pursuant to
Section 1505) of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall
make and file with the permanent secretary (or the temporary secretary, if no
permanent secretary shall have been elected pursuant to Section 1505) of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the permanent secretary (or the temporary secretary, if no
permanent secretary shall have been elected pursuant to Section 1505) of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section 1502.
The record shall be signed and verified by the affidavits of the permanent
chairman and the permanent secretary of the meeting (or if no permanent chairman
and/or permanent secretary shall have been elected pursuant to Section 1505,
then the temporary chairman and/or the temporary secretary, as the case may be,
shall take such action) and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1507. No Delay of Rights by Meeting.
Nothing in this Article Fifteen contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or of
the Securities.
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ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation or Person, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers or directors, as such, of the Company or of any successor
corporation or Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or any of the Securities or
implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, shareholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
SECTION 1602. Execution in Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
___________________
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and have caused their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
VINTAGE PETROLEUM, INC.,
By ...........................
By ...........................
[SEAL]
Attest:
......................................
THE CHASE MANHATTAN BANK,
as Trustee,
By ...........................
[SEAL]
Attest:
......................................
105
[Notarial Seal]
STATE OF NEW YORK, )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority in and for
the said county and state, on this [ ]th day of [ ] 1997, within my
jurisdiction, the within named __________________ who acknowledged that he is a
______________________ of Vintage Petroleum, Inc. and that for and on behalf of
the said corporation, and as its act and deed he executed the above and
foregoing instrument, after first having been duly authorized by said
corporation so to do.
___________________________________
NOTARY PUBLIC
106
[Notarial Seal]
STATE OF NEW YORK, )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority in and for
the said county and state, on this [ ] day of [ ] 1997, within my
jurisdiction, the within named __________________ who acknowledged that he is a
_________________________ of The Chase Manhattan Bank and that for and on behalf
of the said corporation, and as its act and deed he executed the above and
foregoing instrument, after first having been duly authorized by said
corporation so to do.
___________________________________
NOTARY PUBLIC