EXHIBIT 4.1
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VINTAGE PETROLEUM, INC.
TO
JPMORGAN CHASE BANK
Trustee
Indenture
Dated as of May 2, 2002
8 1/4% SENIOR NOTES DUE 2012
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TABLE OF CONTENTS
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PAGE
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................................... 2
Act....................................................................... 2
Additional Assets......................................................... 2
Additional Securities..................................................... 2
Adjusted Consolidated Net Tangible Assets................................. 2
Affiliate................................................................. 3
Asset Sale................................................................ 4
Authenticating Agent...................................................... 4
Average Life.............................................................. 4
Board of Directors........................................................ 4
Board Resolution.......................................................... 4
Business Day.............................................................. 4
Capital Lease Obligation.................................................. 5
Capital Stock............................................................. 5
Change of Control......................................................... 5
Change of Control Offer................................................... 6
Change of Control Payment Date............................................ 6
Closing Date.............................................................. 6
Commission................................................................ 6
Company................................................................... 6
Company Request or Company Order.......................................... 6
Consolidated Interest Coverage Ratio...................................... 6
Consolidated Interest Expense............................................. 7
Consolidated Net Income................................................... 8
Consolidated Net Worth.................................................... 8
Corporate Trust Office.................................................... 8
corporation............................................................... 8
Covenant Defeasance....................................................... 9
Covenant Suspension ...................................................... 9
CUSIP Number.............................................................. 9
Default................................................................... 9
Defaulted Interest........................................................ 9
Defeasance................................................................ 9
Depositary................................................................ 9
Dollar-Denominated Production Payments.................................... 9
EBITDA.................................................................... 9
85/8% Indenture........................................................... 10
85/8% Notes............................................................... 10
Event of Default.......................................................... 10
Excess Proceeds........................................................... 10
Exchange Act.............................................................. 10
Exchanged Properties...................................................... 10
Exchange Rate Contract.................................................... 10
Expiration Date........................................................... 10
Expiry Date............................................................... 10
Fair Market Value......................................................... 10
Foreign Subsidiary........................................................ 11
Global Security........................................................... 11
Guarantee................................................................. 11
Hedging Agreements........................................................ 11
Holder.................................................................... 11
Incur..................................................................... 11
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Indebtedness ............................................................. 12
Indenture................................................................. 12
Initial Securities........................................................ 13
Interest Payment Date..................................................... 13
Interest Rate Protection Agreement........................................ 13
Investment................................................................ 13
Investment Company Act.................................................... 13
Investment Grade Rating................................................... 13
Issue Date................................................................ 13
Legal Holiday............................................................. 13
Lien...................................................................... 13
Liquid Securities......................................................... 14
Material Change........................................................... 14
Maturity.................................................................. 14
Xxxxx'x................................................................... 14
Net Available Cash........................................................ 14
Net Working Capital....................................................... 15
9% Indenture.............................................................. 15
9% Notes.................................................................. 15
9 3/4% Indenture.......................................................... 15
9 3/4% Notes.............................................................. 15
Notice of Default......................................................... 16
Officers' Certificate..................................................... 16
Oil and Gas Business...................................................... 16
Oil and Gas Liens......................................................... 16
Oil and Gas Purchase and Sale Contract.................................... 16
Opinion of Counsel........................................................ 17
Original Securities....................................................... 17
Outstanding............................................................... 17
pari passu................................................................ 18
Pari Passu Indebtedness................................................... 18
Participants.............................................................. 18
Paying Agent.............................................................. 18
Permitted Business Investments............................................ 18
Permitted Designee........................................................ 19
Permitted Holders......................................................... 19
Permitted Indebtedness.................................................... 19
Permitted Investments..................................................... 21
Permitted Liens........................................................... 21
Permitted Short-Term Investments.......................................... 21
Person.................................................................... 22
Predecessor Security...................................................... 22
Preferred Stock........................................................... 22
Prepayment Offer.......................................................... 22
Prepayment Offer Notice................................................... 22
primary obligor........................................................... 24
Production Payments and Reserve Sales..................................... 24
Property.................................................................. 25
Public Equity Offering.................................................... 25
Purchase Amount........................................................... 25
Purchase Date............................................................. 25
Purchase Price............................................................ 25
Rating Agency............................................................. 25
Redeemable Stock.......................................................... 25
Redemption Date........................................................... 25
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Redemption Price .......................................... 26
Registrar.................................................. 26
Regular Record Date........................................ 26
Restricted Payment......................................... 26
Restricted Subsidiary...................................... 26
Sale and Leaseback Transaction............................. 26
Securities................................................. 26
Securities Act............................................. 27
Security Register and Security Registrar................... 27
Senior Credit Facility..................................... 27
7 7/8% Indenture........................................... 27
7 7/8% Notes............................................... 27
Special Interest........................................... 27
Special Record Date........................................ 27
S&P........................................................ 27
Stated Maturity............................................ 27
Subordinated Indebtedness.................................. 27
Subordinated Note Indentures............................... 28
Subsidiary................................................. 28
Surviving Entity........................................... 28
Suspended Covenants........................................ 28
Transaction Date........................................... 28
Trust Indenture Act........................................ 28
Trust Officer.............................................. 28
Trustee.................................................... 28
Unrestricted Subsidiary.................................... 28
U.S. GAAP ................................................. 28
U.S. Government Obligation................................. 28
Vice President............................................. 29
Volumetric Production Payments............................. 29
Voting Redeemable Stock.................................... 29
Voting Stock............................................... 29
Wholly Owned Subsidiary.................................... 29
SECTION 102. Compliance Certificates and Opinions.......................... 29
SECTION 103. Form of Documents Delivered to Trustee........................ 30
SECTION 104. Acts of Holders; Record Dates................................. 31
SECTION 105. Notices, Etc., to Trustee and Company......................... 33
SECTION 106. Notice to Holders; Waiver..................................... 34
SECTION 107. Conflict with Trust Indenture Act............................. 34
SECTION 108. Effect of Headings, Table of Contents and
Cross-Reference Sheet.................................... 35
SECTION 109. Successors and Assigns........................................ 35
SECTION 110. Separability Clause........................................... 35
SECTION 111. Benefits of Indenture......................................... 35
SECTION 112. Governing Law................................................. 35
SECTION 113. Legal Holidays................................................ 35
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Securities............................................ 36
SECTION 202. Form of Face of Securities.................................... 37
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SECTION 203. Form of Reverse of Securities................................... 37
SECTION 204. Form of Trustee's Certificate of
Authentication.............................................. 37
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount of Securities; Issuable in Series........................ 37
SECTION 302. Denominations................................................... 39
SECTION 303. Execution, Authentication, Delivery and
Dating...................................................... 39
SECTION 304. Temporary Securities............................................ 40
SECTION 305. Registration, Registration of Transfer
and Exchange................................................ 41
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................................. 44
SECTION 307. Payment of Interest; Interest Rights
Preserved................................................... 44
SECTION 308. Persons Deemed Owners........................................... 46
SECTION 309. Cancellation.................................................... 46
SECTION 310. Computation of Interest......................................... 46
SECTION 311. 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
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
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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..................................................................... 56
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......................................................... 58
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.................................................................... 65
SECTION 802. Successor Substituted.................................................................. 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders....................................................................... 67
SECTION 902. Supplemental Indentures with Consent
of Holders....................................................................... 68
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SECTION 903. Execution of Supplemental Indentures................................................. 69
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........................................................................ 70
SECTION 1002. Registrar and Paying Agent........................................................... 71
SECTION 1003. Money for Securities Payments To Be Held
in Trust........................................................................ 71
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.................................................... 73
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. Limitation on Indebtedness of Restricted
Subsidiaries and Restricted Subsidiary
Guarantees ..................................................................... 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.......................................................... 84
SECTION 1019. Mandatory Repurchase Upon a Change of
Control......................................................................... 84
SECTION 1020. Further Instruments and Acts......................................................... 86
SECTION 1021. Covenant Suspension.................................................................. 86
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Election To Redeem; Notice to Trustee................................................ 87
SECTION 1102. Selection by Trustee of Securities To
Be Redeemed..................................................................... 87
SECTION 1103. Notice of Redemption................................................................. 88
SECTION 1104. Deposit of Redemption Price.......................................................... 88
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SECTION 1105. Securities Payable on Redemption Date................................................. 89
SECTION 1106. Securities Redeemed in Part........................................................... 89
SECTION 1107. Purchase of Securities................................................................ 89
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Defeasance and Discharge.............................................................. 90
SECTION 1202. Covenant Defeasance................................................................... 90
SECTION 1203. Conditions to Defeasance or Covenant
Defeasance....................................................................... 91
SECTION 1204. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Miscellaneous Provisions......................................................... 92
SECTION 1205. Reinstatement......................................................................... 93
ARTICLE THIRTEEN
[Intentionally Omitted]
ARTICLE FOURTEEN
CONCERNING THE HOLDERS
SECTION 1401. Identification of Company-Owned
Securities....................................................................... 93
SECTION 1402. Revocation of Consents................................................................ 94
ARTICLE FIFTEEN
HOLDERS' MEETINGS
SECTION 1501. Purposes of Meetings.................................................................. 94
SECTION 1502. Call of Meetings by Trustee........................................................... 95
SECTION 1503. Call of Meetings by Company or Holders................................................ 95
SECTION 1504. Qualifications for Voting............................................................. 95
SECTION 1505. Regulations........................................................................... 96
SECTION 1506. Voting................................................................................ 97
SECTION 1507. No Delay of Rights by Meeting......................................................... 97
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Indenture and Securities Solely
Corporate Obligations............................................................ 98
SECTION 1602. Execution in Counterparts............................................................. 98
SECTION 1603. Designated Senior Indebtedness........................................................ 98
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TESTIMONIUM.......................................................................................... 100
SIGNATURE ........................................................................................... 100
ACKNOWLEDGMENT....................................................................................... 102
APPENDIX A Provisions Relating to Initial Securities and Exchange
Securities
EXHIBIT 1 TO
APPENDIX A Form of Initial Security
EXHIBIT A Form of Exchange Security
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INDENTURE, dated as of May 2, 2002, between VINTAGE PETROLEUM, INC., a
Delaware corporation (herein called the "Company"), having its principal office
at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and JPMORGAN CHASE 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 8 1/4% Senior
Notes due 2012 to be issued on the date hereof (the "Original Securities"), the
Company's 8 1/4% Senior Notes due 2012 issued subsequent to the date hereof (the
"Additional Securities" and, together with the Original Securities, the "Initial
Securities") from time to time, in one or more series as in this Indenture
provided, and, if and when issued pursuant to a registered or private exchange
for the Initial Securities, the Company's 8 1/4% Senior Notes due 2012 (the
"Exchange Securities" and, together with the Initial Securities, 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.
"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.
"Additional Securities" shall have the meaning set forth in the
preamble.
"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
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determinations made pursuant to clauses (A) through (D), such increases and
decreases shall be as estimated by the Company's petroleum engineers, unless
there is a Material Change as a result of such acquisitions, dispositions or
revisions, in which event 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 (A) the net book value on a date no earlier than the date of the Company's
latest annual or quarterly financial statements or (B) the appraised value, as
estimated by independent appraisers, of other tangible assets (including,
without duplication, Investments in unconsolidated Restricted Subsidiaries) of
the Company and its Restricted Subsidiaries, as of the date no earlier than the
date of the Company's latest audited financial statements, minus (b) the sum of
(i) minority interests, (ii) any gas balancing liabilities of the Company and
its Restricted Subsidiaries reflected in the Company's latest audited financial
statements, (iii) to the extent included in (a)(i) above, the discounted future
net revenues, calculated in accordance with 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.
"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.
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"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 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.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day that is not a Legal Holiday.
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"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 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
5
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.
"Closing Date" means the date of this Indenture.
"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
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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 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 the Senior
Credit Facility 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 that is Indebtedness 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
7
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, 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; (viii) the cumulative effect of a
change in accounting principles; and (ix) impairment losses on oil and gas
properties.
"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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000.
8
"corporation" means a corporation, association, company, joint-stock
company or business trust. "Covenant Defeasance" has the meaning specified in
Section 1202.
"Covenant Suspension" has the meaning specified in Section 1021.
"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 307.
"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.
"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
9
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.
"8 5/8% Indenture" means the indenture dated as of February 5, 1997,
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee, relating to the issuance of the 8 5/8% Notes.
"8 5/8% Notes" means the 8 5/8% Senior Subordinated Notes Due 2009 of
the Company, issued pursuant to the 8 5/8% Indenture.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" shall have the meaning specified in Section 1012.
"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
10
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 Global Securities Legend set forth in Exhibit 1 to
Appendix A hereto or Exhibit A hereto.
"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 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
11
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 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; provided further that the amount of
Indebtedness resulting solely from a Guarantee resulting solely from a Lien on
the Property of a Person is the lesser of the Fair Market Value of such Property
or the amount of the obligation so secured. 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
12
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.
"Initial Securities" shall have the meaning set forth in the preamble.
"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 terms in
accordance with normal trade practices and any increase in the equity ownership
in any Person resulting from retained earnings of such Person.
"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.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's or BBB-(or the equivalent) by S&P.
"Issue Date", with respect to any Initial Securities, means the date
upon which such Initial Securities are originally issued and authenticated
hereunder.
13
"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 the
Company or 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.
"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 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.
"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
14
Maturity or by declaration of acceleration, call for redemption, pursuant to a
Prepayment Offer or Change of Control Offer or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"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.
"9% Indenture" means the indenture dated as of December 20, 1995,
between the Company and JPMorgan Chase Bank (formerly known as Chemical Bank),
as trustee, relating to the issuance of the 9% Notes.
15
"9% Notes" means the 9% Senior Subordinated Notes Due 2005 of the
Company, issued pursuant to the 9% Indenture.
"9 3/4% Indenture" means the indenture dated as of January 26, 1999,
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee, relating to the issuance of the 9 3/4% Notes.
"9 3/4% Notes" means the 9 3/4% Senior Subordinated Notes Due 2009 of
the Company, issued pursuant to the 9 3/4% 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 xxxxx 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
16
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.
"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.
"Original Securities" shall have the meaning set forth in the preamble.
"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 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
17
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 pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"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 the principal of, premium (if any) and
accrued and unpaid interest on (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization of the Company,
regardless of whether or not a claim for post-filing interest is allowed in such
proceedings) and fees and other amounts owing in respect of, Indebtedness of the
Company for borrowed money and all other Indebtedness of the Company, whether
outstanding on the Closing Date or thereafter Incurred; provided, however, that
Pari Passu Indebtedness shall not include (a) any obligation of the Company to
any of its Subsidiaries, (b) any liability for Federal, state, local or other
taxes owed or owing by the Company, (c) any accounts payable or other liability
of the Company to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the Company (and any accrued and unpaid
interest in respect thereof) that by its terms is subordinate or junior in any
respect to any other Indebtedness or obligation of the Company, including any
Subordinated Indebtedness, (e) any obligations with respect to any Capital
Stock, (f) any Indebtedness Incurred in violation of this Indenture or (g)
in-kind obligations relating to net oil and gas balancing positions.
"Participants" has the meaning specified in Section 305.
18
"Paying Agent" has the meaning specified in Section 1002.
"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).
"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 Xxxxxxx X. Xxxxxxxxxx, Xx., Xxxxxxx X. Xxxxxxxxx,
S. Xxxxx Xxxxxx, Xxxxxxx X. Xxxxxx and their Permitted Designees.
"Permitted Indebtedness" means any and all of the following: (a)
Indebtedness evidenced by the Original Securities (and any Subsidiary Guarantee
thereof); (b) Indebtedness under the Senior Credit Facility, provided that the
aggregate principal amount of Indebtedness Incurred pursuant to this clause (b),
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) $350 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 the Senior Credit Facility shall be permanently reduced by the
amount of Net Available Cash from Assets Sales used to permanently repay
Indebtedness under the Senior Credit Facility, and not subsequently reinvested
in Additional Assets or used to
19
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 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 Closing 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), (b), (e) and (j) 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
20
Life at the time such Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being exchanged or refinanced, and (iv)
such Indebtedness is subordinated in right of payment to 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 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 Closing Date (other than
Investments described in clauses (a) through (i) above).
21
"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 the Company or 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.
"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 306 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.
22
"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 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
23
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
(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.
24
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).
"Public Equity Offering" means an underwritten public offering of common
stock of the Company pursuant to an effective registration statement under the
Securities Act.
"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.
"Rating Agency" means each of S&P and Xxxxx'x, or if S&P or Xxxxx'x or both
shall not make a rating on the Securities publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Company (as evidenced by a Board Resolution) which shall be substituted
for S&P or Xxxxx'x or both, as the case may be.
"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
25
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 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.
"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
(other than the 9% Notes) 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
26
Subsidiary held by the Company and its other Restricted Subsidiaries.
"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 305.
"Senior Credit Facility" means the Second Amended and Restated Credit
Agreement dated November 30, 2000, among the Company and certain banks, or any
successor or replacement agreement and whether with the same or any other agent,
lender or group of lenders, together with related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time (including any
similar agreements extending the maturity of, refinancing, replacing, increasing
or otherwise restructuring all or any portion of the Indebtedness under such
agreements).
"7 7/8% Indenture" means the indenture dated as of May 30, 2001,
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee, relating to the issuance of the 7 7/8% Notes.
"7 7/8% Notes" means the 7 7/8% Senior Subordinated Notes Due 2011 of
the Company, issued pursuant to the 7 7/8% Indenture.
"Special Interest" has the meaning specified in Exhibit 1 to Appendix A
hereto.
27
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"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).
"Subordinated Indebtedness" means Indebtedness evidenced by the 9%
Notes, the 9 3/4% Notes, the 8 5/8% Notes and the 7 7/8% Notes and any other
Indebtedness of the Company that is by its terms subordinate in right of payment
to the Securities.
"Subordinated Note Indentures" means the 9% Indenture, the 9 3/4%
Indenture, the 8 5/8% Indenture and the 7 7/8% Indenture.
"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 clause (i), (ii) or (iii) above.
"Surviving Entity" has the meaning specified in Section 801.
"Suspended Covenants" has the meaning specified in Section 1021.
"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.
28
"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.
"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)
29
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 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.
30
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.
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
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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.
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
32
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 Xxxxxxx 000, (xxx) 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.
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
33
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: Institutional
Trust Services, 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.
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
34
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 and the Table of Contents 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.
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.
35
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 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Securities.
The Securities of each series shall be in substantially the applicable
forms set forth in Exhibit 1 to Appendix A hereto or Exhibit A hereto with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture. The Securities of each series 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
36
officers executing such Securities, as evidenced by their execution thereof.
The Securities of each series 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 Exhibit 1 to
Appendix A hereto or Exhibit A hereto, as applicable, 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 of each series shall be typed, printed, lithographed or
engraved or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Provisions relating to the Initial Securities of each series and the
Exchange Securities are set forth in Appendix A, which is hereby incorporated in
and expressly made part of this Indenture. The terms of the Securities of each
series set forth in Exhibit 1 to Appendix A and Exhibit A are part of the terms
of this Indenture.
SECTION 202. Form of Face of Securities.
The face of the Initial Securities of each series shall be
substantially in the form of Exhibit 1 to Appendix A, which is hereby
incorporated in and expressly made a part of this Indenture. The face of the
Exchange Securities shall be substantially in the form of Exhibit A, which is
hereby incorporated in and expressly made a part of this Indenture.
SECTION 203. Form of Reverse of Securities.
The reverse of the Initial Securities of each series shall be
substantially in the form of Exhibit 1 to Appendix A, which is hereby
incorporated in and expressly made a part of this Indenture. The reverse of the
Exchange Securities shall be substantially in the form of Exhibit A, which is
hereby incorporated in and expressly made a part of this Indenture.
37
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 8 1/4% Senior Notes Due 2012 referred to
in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank, As Trustee
By _____________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount of Securities; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. All Securities shall be
identical in all respects other than issue price, issuance dates, title and
original interest accrual dates. The Securities may be issued in one or more
series; provided, however, that no Securities other than the Original Securities
shall be issued unless such Securities are fungible with the Original Securities
for Federal income tax purposes. All Securities of any one series shall be
substantially identical except as to denomination.
Subject to Section 303, the Trustee shall authenticate Original
Securities for original issue on the Closing Date in the aggregate principal
amount of $350,000,000. The Original Securities shall be limited to $350,000,000
in aggregate principal amount (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 304, 305, 306, 906, 1012, 1019 or 1106 or
Appendix A). With respect to any Additional Securities (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1012, 1019 or 1106 or Appendix A), there shall be established in or pursuant to
a resolution of the Board of Directors and set forth or determined in the manner
provided in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the Issue Date of such Additional Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities
38
and the title of such Additional Securities (which shall distinguish
the Additional Securities of the series from Securities of any other
series);
(2) any limit on the aggregate principal amount of such
Additional Securities which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the same series pursuant to Section 304, 305, 306, 906,
1012, 1019 or 1106 or Appendix A and except for Securities which,
pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
(3) the issue price and Issue Date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Exhibit 1 to Appendix A and any circumstances in addition to
or in lieu of those set forth in Section 2.4 of Appendix A in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee
thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities set forth in Appendix A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit A.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of
Directors, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or the indenture supplemental hereto setting
forth the terms of the Additional Securities.
The Trustee shall not be required to authenticate any Securities in
addition to the Original Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
39
In authenticating such Securities after the Closing Date, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form of such Securities has been established in conformity
with the provisions of this Indenture;
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 302. 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 303. 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, 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
40
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 309, 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, subject to Section 301, authenticate and deliver
Securities for original issue 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.
SECTION 304. 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 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 series, 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 305. 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
41
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 series, 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 series, 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 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 304, 906, 1012, 1019 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
42
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 and a successor Depositary is not appointed by the
Company within 90 days of such notice or after it becomes aware of such
cessation, (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 registrable, 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 of a sum
sufficient to cover any tax or governmental charge imposed in connection
therewith.
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(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 304, 306, 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 306. 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 series, tenor and principal amount and bearing a
number not contemporaneously outstanding.
44
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 series, 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 307. 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
45
Securities (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited 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.
Whenever in this Indenture there is mentioned, in any context, the
payment of interest on any Initial Security, such mention shall be deemed to
include mention of the payment of Special Interest, and express mention of the
payment of Special Interest in any provision hereof relating to the Initial
46
Securities shall not be construed as excluding the payment of Special Interest
in those provisions hereof where such express mention is not made.
SECTION 308. 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 307) any interest on such Security and for all other
purposes whatsoever, whether or not such 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 309. 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 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360_day
year of twelve 30-day months.
SECTION 311. 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
47
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.
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 306 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
48
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
(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.
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 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
49
(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 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;
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(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
(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 Xxxxx 00, Xxxxxx Xxxxxx 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
51
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in aggregate principal amount
of the 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 the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
52
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.
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: 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 307)
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
306, 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.
55
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.
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
56
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.
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
57
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, 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
58
(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
or of any changes in the ratings of the Securities by the Rating Agencies 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.
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
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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.
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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,
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
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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 such successor Trustee all the
rights, powers and trusts of the
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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 306, and the
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid
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and obligatory for all purposes as if 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.
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The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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 8 1/4% Senior Notes Due 2012 referred to
in the within-mentioned Indenture.
JPMorgan Chase 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 May 1 and November 1 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 April 15 or October 15, 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.
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
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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; provided, however, that this clause (d) shall be
suspended during any period in which the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants;
(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 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
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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
(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
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(5) to secure or Guarantee the Securities pursuant to the requirements
of Section 1009, Section 1013 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 or rights 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; or
(10) to provide for the issuance of Additional Securities in accordance
with Section 301.
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,
(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
69
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 (4) 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) 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
(5) 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.
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,
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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.
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 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.
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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.
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
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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 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
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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 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.
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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, and it shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any Lien on or with respect to
any Property of the Company or any Restricted Subsidiary, whether owned on the
Closing Date or acquired after the Closing 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 and any Restricted Subsidiary may, without restriction,
Incur the following Liens (each a "Permitted Lien"):
(a) Liens existing as of the Closing 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 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 or any Restricted
Subsidiary;
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(d) Liens securing the Securities and other obligations arising under this
Indenture;
(e) Liens securing Indebtedness under the Senior Credit Facility;
(f) Liens securing Indebtedness to the Company or to any of its Wholly
Owned Subsidiaries by any of its Restricted Subsidiaries (but only so long as
such Indebtedness is held by the Company or by a Wholly Owned Subsidiary);
(g) Liens of the Company on assets of a Restricted Subsidiary;
(h) any Lien that constitutes a purchase money security interest in
Property or improvements thereto hereafter acquired (or, in the case of
improvements, constructed) by the Company or any of its Restricted Subsidiaries;
provided however that (i) such security interests and the Indebtedness secured
thereby are Incurred within 90 days of such acquisition (or construction) and
(ii) such security interests do not apply to any other Property of the Company
or any of its Restricted Subsidiaries;
(i) 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 this Indenture and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement;
(j) 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-
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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;
(k) 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;
(l) 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;
(m) Liens securing Hedging Agreements, so long as such Hedging
Agreements are permitted under Section 1008;
(n) Liens in connection with Sale and Leaseback Transactions permitted
pursuant to Section 1008;
(o) Liens on assets of a Restricted Subsidiary to secure Indebtedness
of that Restricted Subsidiary that is permitted pursuant to Section 1008;
(p) 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
refinancings thereof;
(q) 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; and
(r) Liens securing any Pari Passu Indebtedness, to the extent such
Liens are required by covenants substantially similar to this Section 1009.
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;
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(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 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.
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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 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 Closing 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
79
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, (i) 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), (ii) to purchase
Securities (excluding Securities owned by the Company or an Affiliate of the
Company) or Pari Passu Indebtedness, or (iii) to repay or prepay Indebtedness
outstanding under the Senior Credit Facility.
(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 make an offer to purchase
(a "Prepayment Offer") on a pro rata basis, from all holders of the Securities
and, to the extent required by the terms of any then outstanding Pari Passu
Indebtedness, such Pari Passu Indebtedness, an aggregate principal amount of
Securities and any such Pari Passu Indebtedness equal to the Excess Proceeds, at
a price in cash at least equal to 100% of the outstanding principal amount
thereof plus accrued interest, 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 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 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 this Indenture, the Company or such
Restricted Subsidiary may use such remaining amount for general corporate
purposes and the amount of Excess Proceeds will be reset to zero.
(d) Within five Business Days after 365 days from the date of an Asset
Sale the Company shall, if it is obligated to apply any Net Available Cash from
Asset Sales 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
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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 repurchase 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 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. Limitation on Indebtedness of Restricted Subsidiaries and
Restricted Subsidiary Guarantees.
(a) Notwithstanding the provisions of Section 1008, the Company will
not permit any Restricted Subsidiary to Incur any Indebtedness if the aggregate
amount of Indebtedness of the Restricted Subsidiaries (other than Guarantees of
the Securities or of any Pari Passu Indebtedness or Indebtedness to the Company
or to any Wholly Owned Subsidiary (but only so long as such Indebtedness is held
by the Company or a Wholly Owned Subsidiary)) would as a result of such
Incurrence exceed 10% of the Company's Adjusted Consolidated Net Tangible Assets
unless such Restricted Subsidiary has Guaranteed the Securities and such
Indebtedness is subordinated to such Guarantee of the Securities. Such Guarantee
will be automatically released at any time that the aggregate amount of such
Indebtedness of the Restricted Subsidiaries no longer exceeds 10% of the
Company's Adjusted Consolidated Net Tangible Assets.
(b) The Company will not permit any Restricted Subsidiary to Guarantee
any of its Indebtedness, other than Indebtedness under the Senior Credit
Facility, unless the Securities (and any future Pari Passu Indebtedness that
benefits from a similar requirement) are Guaranteed by such Restricted
Subsidiary on a pari passu basis. The Company will not permit any Restricted
Subsidiary to Guarantee on a secured basis any of its Indebtedness under the
Senior Credit Facility unless such Restricted Subsidiary Guarantees the
Securities (and any future Pari Passu Indebtedness that benefits from a similar
requirement) on a pari passu, but unsecured, basis. Any Guarantee of the
Securities required by this paragraph (b) will
81
no longer be required and will be automatically released if the other Guarantee
by that Restricted Subsidiary that caused this paragraph (b) to require a
Guarantee of the Securities is no longer in effect.
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 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
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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 Closing Date, (ii) required by the Senior
Credit Facility that are not more restrictive than those in effect under the
Senior Credit Facility on the Closing 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 Property, so
long as such encumbrance or
83
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
84
Indebtedness pursuant to clause (a) of Section 1008 and (ii) no Default or Event
of Default would occur or be continuing.
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
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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.
(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 (the "Change of Control
Payment 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; (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.
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(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.
(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.
Section 1021. Covenant Suspension.
During any period of time that (a) the Securities have an Investment Grade
Rating from both Rating Agencies and (b) no Default or Event of Default has
occurred and is continuing under this Indenture, the Company and its Restricted
Subsidiaries will not be subject to the following provisions of this Indenture:
Sections 1008, 1010, 1011, 1012, 1013(a), 1014 and 1015 (collectively the
"Suspended Covenants" and the suspension of such covenants being herein called a
"Covenant Suspension"). In the event that the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of the preceding sentence and, subsequently, one or
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both of the Rating Agencies withdraws its ratings or downgrades the ratings
assigned to the Securities below the required Investment Grade Ratings or a
Default or an Event of Default (other than as a result of any breach of the
Suspended Covenants) occurs and is continuing, then the Company and its
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants and compliance with the Suspended Covenants with respect to Restricted
Payments made after the time of such withdrawal, downgrade, Default or Event of
Default will be calculated in accordance with the terms of Section 1010 as
though, for purposes of determining whether new Restricted Payments can be made
after such time, such covenant had been in effect during the entire period of
time from the Closing Date. The Company shall provide prompt written notice to
the Trustee of any changes in the ratings of the Securities by the Ratings
Agencies. The Trustee shall not be required to notify the Holders of any such
changes.
For the avoidance of doubt, such Covenant Suspension 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
Suspended Covenant or in Section 501(3) (to the extent relating to any Suspended
Covenant), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and the Securities shall be unaffected thereby.
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. In connection with any redemption pursuant to the fourth paragraph of
the reverse of the Securities, such notice shall be accompanied by an Officers'
Certificate to the effect that all conditions precedent provided for herein to
the right of the Company to redeem the Securities pursuant to such paragraph
have been complied with.
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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 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
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Security are to be redeemed, the principal amount of the particular
Security to be redeemed,
(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
307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any
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premium shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security.
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 the same series, 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
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 304, 305, 306, 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
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exercise of its option (if any) to have Section 1202 applied to the Securities.
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 and (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, 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)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section 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.
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(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 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.
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(9) 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.
(10) 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.
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.
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
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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
[Intentionally Omitted.]
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 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.
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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 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
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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 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.
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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.
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
98
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.
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
99
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.
SECTION 1603. Designated Senior Indebtedness.
The Company hereby designates the Securities and all other obligations
of the Company hereunder as "Designated Senior Indebtedness" for purposes of,
and as defined in, each Subordinated Note Indenture.
100
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
VINTAGE PETROLEUM, INC.,
By /s/ S. Xxxxx Xxxxxx
-------------------------------
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------
JPMORGAN CHASE BANK,
as Trustee,
By /s/ X. X'Xxxxx
----------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
101
STATE OF OKLAHOMA )
) SS.:
COUNTY OF TULSA )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 2nd day of May 2002 within my jurisdiction, the
within named S. Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxx who acknowledged that they
are President and Chief Executive Officer and Executive Vice President, Chief
Financial Officer and Secretary, respectively, of Vintage Petroleum, Inc. and
that for and on behalf of the said corporation, and as its act and deed they
executed the above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
/s/ Xxxxxx X. Xxxxx
----------------------------------
NOTARY PUBLIC
000
XXXXX XX XXX XXXX, )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this 2nd day of May 2002, within my
jurisdiction, the within named X. X'Xxxxx who acknowledged that he is a Vice
President of JPMorgan Chase 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.
/s/ Xxxxxxxxx XxXxxx
----------------------------------
NOTARY PUBLIC
103
APPENDIX A
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO RULE 144A AND TO
CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL SECURITIES
-----------------------------------------
AND EXCHANGE SECURITIES
-----------------------
1. Definitions
-----------
1.1 Definitions
-----------
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Additional Securities" means the 8 1/4% Senior Notes due 2012
issued subsequent to the date of this Indenture.
"Definitive Security" means a certificated Initial Security
bearing, if required, the restricted securities legend set forth in Section
2.3(d).
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Securities" means the 8 1/4% Senior Notes due 2012
to be issued pursuant to this Indenture in connection with a Registered Exchange
Offer or a Private Exchange pursuant to a Registration Rights Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Deutsche Bank Securities Inc., BMO
Xxxxxxx Xxxxx Corp., Xxxxxxx Xxxxx Barney Inc., Fleet Securities, Inc., BNY
Capital Markets, Inc., Credit Lyonnais Securities (USA) Inc. and XX Xxxxx
Securities Corporation.
"Initial Securities" means the Original Securities and the
Additional Securities.
"Original Securities" means the 8 1/4% Senior Notes due 2012
issued on the date of this Indenture.
"Private Exchange" means the offer by the Company, pursuant to
Section 2(f) of the Registration Rights Agreement dated April 25, 2002, or
pursuant to any similar provision of any other Registration Rights Agreement, to
issue and deliver to certain purchasers, in exchange for the Initial Securities
held by such purchasers as part of their initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means the 8 1/4% Senior Notes
due 2012 to be issued pursuant to this Indenture in
connection with a Private Exchange pursuant to a Registration Rights Agreement.
"Purchase Agreement" means (a) the Purchase Agreement dated
April 25, 2002, among the Company and the Initial Purchasers relating to the
Original Securities and (b) any other similar Purchase Agreement relating to
Additional Securities issued by the Company.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means (a) the Registration
Rights Agreement dated April 25, 2002, among the Company and the Initial
Purchasers relating to the Original Securities and (b) any other similar
Registration Rights Agreement relating to Additional Securities.
"Securities" means the Initial Securities and the Exchange
Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
issued by the Company in connection with the offer and sale of Initial
Securities pursuant to a Registration Rights Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the legend set forth
in Section 2.3(d) hereto.
1.2 Other Definitions
-----------------
Defined in
Term Section:
---- -------
"Agent Members".........................................................2.1(b)
"Global Security".......................................................2.1(a)
"Regulation S" .........................................................2.1
"Rule 144A".............................................................2.1
2
2. The Securities
--------------
2.1 Form
----
The Initial Securities will be offered and sold by the Company,
from time to time, pursuant to one or more Purchase Agreements. The Initial
Securities will be resold initially only to QIBs in reliance on Rule 144A under
the Securities Act ("Rule 144A") or in reliance on Regulation S under the
Securities Act ("Regulation S"). Initial Securities may thereafter be
transferred to, among others, QIBs, IAIs and purchasers in reliance on
Regulation S.
(a) Global Securities. Initial Securities shall be issued
-----------------
initially in the form of one or more permanent global Securities in definitive,
fully registered form without interest coupons with the global securities legend
and restricted securities legend set forth in Exhibit 1 hereto (each, a "Global
Security"), which shall be deposited on behalf of the purchasers of the Initial
Securities represented thereby with the Securities Custodian, and registered in
the name of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture. 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
Depository or its nominee as hereinafter provided. Beneficial interests in
Initial Securities that are sold to QIBs, that are sold pursuant to Regulation S
of the Securities Act or that are sold to IAIs will be represented by separate
Global Securities.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to
---------------------
a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b) and pursuant to a Company Order, authenticate and
deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depository for such Global Security or Global Securities or the
nominee of such Depository and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by the Trustee
as Securities Custodian.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as Securities Custodian
or under such Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global 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 Depository or
3
impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in Section 2.3 or
-----------------------
2.4, owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
--------------
Original Securities for original issue in an aggregate principal amount of
$350,000,000, (2) subject to the terms of this Indenture, Additional Securities,
if and when issued, in an unlimited aggregate principal amount and (3) Exchange
Securities for issue only in a Registered Exchange Offer or a Private Exchange
pursuant to a Registration Rights Agreement, for a like principal amount of
Initial Securities, upon receipt of a Company Order. Such order shall specify
the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated and whether the Securities
are to be Initial Securities or Exchange Securities.
2.3 (a) Transfer and Exchange. (a) Transfer and Exchange of Definitive
--------------------- -----------------------------------
Securities. When Definitive Securities are presented to the Registrar or a
----------
co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar or co_registrar shall register the transfer or make the exchange
as requested if the requirements for such transaction set forth in Section 305
of this Indenture are met; provided, however, that the Definitive Securities
-------- -------
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar
or co_registrar, duly executed and completed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section 2.3(b)
or pursuant to clause (ii)(A), (ii)(B) or (ii)(C) below, and are
4
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered to the
Security Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect; or
(B) if such Definitive Securities are being transferred to the
Company, a certification to that effect (in the form set forth on the
reverse of such Security); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act or in reliance on another exemption from the
registration requirements of the Securities Act, (i) a certification
to that effect (in the form set forth on the reverse of such Security)
and (ii) if the Company requests, an opinion of counsel or other
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Security for a
-------------------------------------------------------
Beneficial Interest in a Global Security. A Definitive Security may not be
----------------------------------------
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form reasonably satisfactory to the Company and the Registrar or
co-registrar, together with:
(i) certification, in the form set forth on the reverse of such
Security, that such Definitive Security is being transferred (A) to a QIB
in accordance with Rule 144A, (B) to an IAI that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which has been approved by the Company) or (C) outside the
United States in an offshore transaction within the meaning of Regulation S
and in compliance with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the
participant account of the Depository to be credited with such increase,
5
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the related Global
Security to be increased by the aggregate principal amount of the Definitive
Security to be exchanged and shall credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in such
Global Security equal to the principal amount of the Definitive Security so
cancelled. If the related Global Security is not then outstanding and such
Global Security has not been previously exchanged pursuant to Section 2.4, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i) The transfer and
------------------------------------------
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depository therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depository's
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global Security and
such account shall be credited in accordance with such instructions with a
beneficial interest in the Global Security and the account of the Person making
the transfer shall be debited by an amount equal to the beneficial interest in
the Global Security being transferred. In the case of a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the transferor and/or the transferee, as applicable, must furnish a
signed letter to the Trustee containing certain representations and agreements
as to compliance with the restrictions set forth in the legend set forth in
Section 2.3(d)(i) in connection with such transfer (the form of which letter
shall be obtained from the Company).
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Security to a beneficial interest in another Global Security,
the Registrar shall reflect on its books and records the date of such
transfer and an increase in the principal amount of the Global Security to
which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the Registrar
shall reflect on its books and records the date and a corresponding
decrease in the principal amount of the Global Security from which such
interest is being transferred.
6
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Security may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for Securities
in definitive registered form pursuant to Section 2.4 prior to the
consummation of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities may
be exchanged and subsequently transferred and exchanged only in accordance
with such procedures as are substantially consistent with the provisions of
this Section 2.3 (including the certification requirements set forth on the
reverse of the Initial Securities intended to ensure that such transfers
comply with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(d) Legend.
------
(i) Except as permitted by the following paragraphs (ii), (iii),
(iv) and (vi), each Security certificate evidencing Global Securities
(which represent Initial Securities) and the Definitive Securities (and all
Securities issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND
ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR
(Y) IF LATER, BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY
TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER
CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF
7
TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
LETTER WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED
BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT CERTAIN
HOLDERS SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT
TO THIS CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40-DAY DISTRIBUTION
COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2)(ii) OF REGULATION
S UNDER THE SECURITIES ACT)), (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE)
UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; AND AGREES
THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT IS (1) A "QUALIFIED INSTITUTIONAL BUYER"
WITHIN THE MEANING OF RULE 144A, (2) AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES
ACT."
Each Definitive Security will also bear the following additional
legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar
8
shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not
bear the legends set forth above and rescind any restriction
on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Definitive Security that does not bear the
legends set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security,
in either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities during the
period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Securities, all requirements pertaining to
legends on such Initial Securities will cease to apply and the
requirements requiring that any such Initial Securities be issued in
global form will continue to apply. Upon the occurrence of any of the
circumstances described in this paragraph, the Company will deliver an
Officers' Certificate to the Trustee instructing the Trustee to issue
Securities without legends.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Securities pursuant to which
certain Holders of such Initial Securities are offered
Exchange Securities in exchange for their Initial Securities,
all requirements pertaining to such Initial Securities that
Initial Securities be issued in global form will continue to
apply, and Exchange Securities in global form will be
available to Holders that exchange such Initial Securities in
such Registered Exchange Offer. Upon the occurrence of any of
the circumstances described in this paragraph, the Company
will deliver an Officers' Certificate to the Trustee
instructing the Trustee to issue Securities without legends.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Private Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will continue to apply, and Private Exchange Securities
in global form with the restricted securities legend set forth in
Exhibit 1 hereto
9
will be available to Holders that exchange such Initial Securities in
such Private Exchange.
(vi) No Initial Security acquired pursuant to Regulation S
may be sold or transferred to a U.S. person (as defined in Regulation
S) or for the account or benefit of a U.S. person (other than a
distributor (as defined in Regulation S)) prior to the termination of
the 40-day distribution compliance period (within the meaning of Rule
903(b)(2)(ii) under Regulation S). Upon a sale or transfer of any
Initial Security acquired pursuant to Regulation S, all requirements
pertaining to legends on such Initial Security will cease to apply, the
requirements requiring any such Initial Security be issued in global
form will continue to apply, and an Initial Security in global form
without the restricted security legend set forth in Exhibit 1 hereto
will be available to the transferee of the Holder of such Initial
Securities.
(vii) Any Additional Securities sold in a registered offering
shall not be required to bear the legend set forth in Section 2.3(d)
hereto.
(e) Cancellation or Adjustment of Global Security. At such
---------------------------------------------
time as all beneficial interests in a Global Security have either been exchanged
for certificated or Definitive Securities, redeemed, repurchased or cancelled,
such Global Security shall be returned by the Depository to the Trustee for
cancellation or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
certificated or Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Securities Custodian for such Global Security) with respect
to such Global Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(f) No Obligation of the Trustee.
----------------------------
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depository or any other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders
10
(which shall be the Depository or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depository subject to the applicable
rules and procedures of the Depository. The Trustee may rely and shall
be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any beneficial
owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities
-----------------------
(a) A Global Security deposited with the Depository or with
the Trustee as Securities Custodian pursuant to Section 2.1 shall be transferred
to the beneficial owners thereof in the form of certificated Securities in an
aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer complies
with Section 2.3 and (i) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global Security or if
at any time the Depository ceases to be a "clearing agency" registered under the
Exchange Act, and a successor depositary is not appointed by the Company within
90 days of such notice or after it becomes aware of such ineligibility, or (ii)
an Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by
the Depository to the Trustee, to be so transferred, in whole or from time to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate
principal amount of certificated Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depository shall
direct. Any certificated Initial Security delivered in exchange for an interest
in the Global Security
11
shall, except as otherwise provided by Section 2.3(d), bear the restricted
securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of either of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form without interest coupons.
12
EXHIBIT 1
to APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY
OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) IF LATER, BY
ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A LETTER
WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS
SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT TO THIS
CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40-DAY DISTRIBUTION COMPLIANCE
PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2)(ii) OF REGULATION S UNDER THE
SECURITIES ACT)), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR
(6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES; AND AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A "QUALIFIED INSTITUTIONAL
BUYER" WITHIN THE MEANING OF RULE 144A, (2) AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i)
OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[Definitive Securities Legend]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.]
2
...............................
8 1/4% Senior Note due 2012
...............................
No. ...... [up to] * $ .....
CUSIP No. [ ]
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 [set forth in the
attached Schedule of Increases and Decreases in Global Security]* [of
$___________]** on May 1, 2012, and to pay interest thereon from May 2, 2002, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually in arrears on May 1 and November 1 in each year,
commencing November 1, 2002, at the rate of 8 1/4% 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 April 15 or October 15 (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,
-----------------------
* Insert for Global Securities
** Insert for Certificated Securities
1
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.
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.
VINTAGE PETROLEUM, INC.
By ..............................
By ..............................
This is one of the Company's 8 1/4% Senior Notes Due 2012
referred to in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank,
As Trustee
By ..............................
Authorized Officer
2
[FORM OF REVERSE OF INITIAL 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 May 2, 2002 (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company and JPMorgan
Chase 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 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 Original Securities referred to
in the Indenture issued in an aggregate principal amount of $350,000,000. The
Securities include the Original Securities, an unlimited aggregate principal
amount of Additional Securities that may be issued under the Indenture and any
Exchange Securities issued in exchange for Initial Securities. The Original
Securities, the Additional Securities and the Exchange Securities are treated as
a single class of securities under the Indenture.] [This Security is one of the
Additional Securities that may be issued under the Indenture. The Securities
include such Additional Securities, the Original Securities in an aggregate
principal amount of $350,000,000 previously issued under the Indenture and any
Exchange Securities issued in exchange for Initial Securities. The Additional
Securities, the Original Securities and the Exchange Securities are treated as a
single class of securities under the Indenture.]
The Securities are subject to redemption at the Company's
option at any time on or after May 1, 2007, in whole or in part, on not less
than 30 nor more than 60 days' prior notice by mail, in amounts of $1,000 or an
integral multiple thereof. If the Securities are redeemed during the 12_month
period commencing on May 1 of any of the years indicated below, the Redemption
Price will equal the percentage of the principal amount of the redeemed
Securities opposite that year
Redemption
Year Price
---- -----------------
2007 104.125%
2008 102.750%
2009 101.375%
and thereafter, beginning May 1, 2010, at 100% of the principal amount of the
Securities, together, in the case of any such redemption, with accrued and
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
3
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.
Notwithstanding the foregoing, prior to May 1, 2005, the
Company may redeem, at any time or from time to time, up to 35% of the original
aggregate principal amount of the Initial Securities actually issued, at a
Redemption Price equal to 108.250% of the principal amount thereof plus accrued
and unpaid interest thereon, 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) with the net
cash proceeds of one or more Public Equity Offerings of the Company, provided
--------
that at least 65% of the original aggregate principal amount of the Initial
Securities actually issued remains outstanding immediately following any such
redemption and provided, further, that such redemption shall occur not later
-------- -------
than 75 days after the date of the closing of any such Public Equity Offering
and upon not less than 30 nor more than 60 days' prior notice.
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, if any, to
the Change of Control Payment Date as provided in, and subject to the terms of,
the Indenture.
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
4
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 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
5
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.
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.
The Securities and all other obligations of the Company thereunder are
"Designated Senior Indebtedness" for purposes of, and as defined in, each
Subordinated Note Indenture.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[The holder of this Security is entitled to the benefits of a
Registration Rights Agreement dated April 25, 2002 (the "Registration Rights
Agreement"), among the Company and the Initial Purchasers named therein.
Capitalized terms used in this paragraph but not defined herein have the
meanings assigned to them in the Registration Rights Agreement. In the event
that (i) neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been filed with the Commission on or prior to the
90th day following the date of original issuance of the Securities, (ii) neither
the Exchange Offer Registration Statement nor the Shelf Registration Statement
has been declared effective on or prior to the 165th day following the date of
the original issuance of the Securities, (iii) neither the Registered Exchange
Offer has been consummated nor the Shelf Registration Statement has been
declared effective on or prior to the 45th day following the date the Exchange
Offer Registration Statement is declared effective under the Securities Act, or
(iv) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has
6
been declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of the Securities at any time
that the Company is obligated to maintain the effectiveness thereof pursuant to
the Registration Rights Agreement (each such event referred to in clauses (i)
through (iv) above being referred to herein as a "Registration Default"), then,
as liquidated damages for such Registration Default, additional interest (the
"Special Interest") shall accrue on the principal amount of the Securities (in
addition to the stated interest on the Securities) from and including the date
on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Special Interest will accrue in
amount equal to $.05 per calendar week per $1,000 principal amount of the
Securities; provided, however, that such rate shall increase by an amount equal
-------- -------
to $.05 per calendar week per $1,000 principal amount of the Securities from and
including the 91st day after the first such Registration Default (and each
successive 91st day thereafter) unless and until all Registration Defaults have
been cured; provided further, however, that in no event shall the Special
---------------- -------
Interest exceed $.30 per calendar week per $1,000 principal amount of the
Securities. The Special Interest will be payable in cash semiannually in arrears
each May 1 and November 1 in the same manner and to the same Persons as regular
interest.]
7
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________________ Your Signature: ____________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [_] outside the United States in an offshore transaction within
the meaning of Regulation S
8
under the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
(5) [_] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933)
that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which
letter to be obtained from the Company); or
(6) [_] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
-------- -------
that if box (4), (5) or (6) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
________________________________
Your Signature
Signature Guarantee:
Date:________________________________ ________________________________
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor acceptable to the
Trustee
________________________________________________________________________________
9
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:_________________________ ____________________________________________
NOTICE: To be executed by an executive
officer
10
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
11
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
_____________________
8 1/4% Senior Note due 2012
_______________________________________________
No. ______ [up to]*$ _____
CUSIP No. [ ]
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 [set forth in the
attached Schedule of Increases and Decreases in Global Security]* [of
$___________]** on May 1, 2012, and to pay interest thereon from May 2, 2002, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually in arrears on May 1 and November 1 in each year,
commencing November 1, 2002, at the rate of 8 1/4% 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 April 15 and October 15 (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,
________________________
* Insert for Global Securities
** Insert for Certified Securities
1
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.
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.
VINTAGE PETROLEUM, INC.
By ___________________________
By ___________________________
This is one of the Company's 8 1/4% Senior Notes Due 2012 referred to
in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank, As Trustee
By ___________________________
Authorized Officer
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[FORM OF REVERSE OF EXCHANGE 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
May 2, 2002 (herein called the "Indenture", which term shall have the meaning
assigned to it in such instrument), between the Company and JPMorgan Chase 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 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 Exchange Securities referred to in the
Indenture issued in exchange for Initial Securities. The Securities include the
Exchange Securities, the Original Securities in the aggregate principal amount
of $350,000,000 and an unlimited aggregate principal amount of Additional
Securities. The Exchange Securities, the Original Securities and such
Additional Securities are treated as a single class of securities under the
Indenture.
The Securities are subject to redemption at the Company's option at
any time on or after May 1, 2007, in whole or in part, on not less than 30 nor
more than 60 days' prior notice by mail, in amounts of $1,000 or an integral
multiple thereof. If the Securities are redeemed during the 12-month period
commencing on May 1 of any of the years indicated below, the Redemption Price
will equal the percentage of the principal amount of the redeemed Securities
opposite that year
Redemption
Year Price
---- ----------------
2007 104.125%
2008 102.750%
2009 101.375%
and thereafter, beginning May 1, 2010, at 100% of the principal amount of the
Securities, together, in the case of any such redemption, with accrued and
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.
Notwithstanding the foregoing, prior to May 1, 2005, the Company may
redeem, at any time or from time to time, up to 35% of the original aggregate
principal amount of the Initial
3
Securities actually issued, at a Redemption Price equal to 108.250% of the
principal amount thereof plus accrued and unpaid interest thereon, 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) with the net cash proceeds of one or more Public Equity Offerings of
the Company, provided that at least 65% of the original aggregate principal
--------
amount of the Initial Securities actually issued remains outstanding immediately
following any such redemption and provided, further, that such redemption shall
-------- -------
occur not later than 75 days after the date of the closing of any such Public
Equity Offering and upon not less than 30 nor more than 60 days' prior notice.
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, if any, to
the Change of Control Payment Date as provided in, and subject to the terms of,
the Indenture.
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
4
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by 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.
5
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.
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.
The Securities and all other obligations of the Company thereunder are
"Designated Senior Indebtedness" for purposes of, and as defined in, each
Subordinated Note Indenture.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
6
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
_______________________________________________________________________________
Date: __________________________ __________________________________________
Your Signature
_______________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:
Date:___________________________ __________________________________________
Signature must be guaranteed by Signature of Signature Guarantee
a participant in a recognized
signature guaranty medallion
program or other signature
guarantor acceptable to the
Trustee
_______________________________________________________________________________
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
8
