SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS SECOND AMENDMENT, dated as of July 14, 1999 (the "Amendment"), to
the separate Note Purchase Agreements, dated as of December 28, 1995, is among
Seitel, Inc. (the "Company") and each of the institutions which is a signatory
to this Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered
into separate Note Purchase Agreements dated as of December 28, 1995
(collectively, as amended and in effect immediately prior to the effectiveness
of this Amendment, the "Existing Note Purchase Agreement"), pursuant to which
the Company issued: (a) $25,000,000 aggregate principal amount of its 7.17%
Series A Senior Notes due December 30, 2001 (the "Series A Notes"), (b)
$27,500,000 aggregate principal amount of its 7.17% Series B Senior Notes due
December 30, 2002 (the "Series B Notes"), and (c) $22,500,000 of its Series C
Senior Notes due December 30, 2002 (the "Series C Notes", and together with the
Series A Notes and the Series B Notes, the "Notes").
B. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Existing Note Purchase Agreement unless herein defined
or the context shall otherwise require.
C. The Company and the Noteholders now desire to amend the Existing
Note Purchase Agreement in the respects, but only in the respects, hereinafter
set forth.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this Amendment a legal, valid and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1 Amendment to Section 10.7(a). Section 10.7(a) of the Existing Note
Purchase Agreement is hereby amended and restated in its entirety as follows:
"10.7 Restricted Payments and Restricted Investments.
(a) Limitation. The Company will not, and will not
permit any of the Restricted Subsidiaries to, directly or
indirectly, declare, make or incur any liability to make any
Restricted Payment or make or authorize any Restricted
Investment unless immediately after giving effect to such
action:
(i) the sum of (x) the aggregate amount of
outstanding Restricted Investments (valued
immediately after such action), plus (y) the
aggregate amount of Restricted Payments of the
Company and the Restricted Subsidiaries declared or
made during the period commencing on the Series A and
B Closing Date, and ending on the date such
Restricted Payment or Restricted Investment is
declared or made, inclusive, would not exceed the sum
of
(A) Ten Million Dollars
($10,000,000), plus
(B) fifty percent (50%) of
Consolidated Net Income for the period
commencing July 1, 1995 and ending on the
date such Restricted Payment or such
Restricted Investment is declared or made
(or minus 100% of Consolidated Net Income
for such period if Consolidated Net Income
for such period is a loss), plus
(C) the aggregate amount of Net
Proceeds of Common Stock of the Company for
such period, plus
(D) the aggregate amount of
Net Proceeds of Qualified Capital for such
period; and
(ii) the Company could incur, pursuant to Section
10.3, at least One Dollar ($1) of additional Debt owing to a
Person other than a Restricted Subsidiary; and
(iii) no Default or Event of Default would exist."
1.2 Amendment to Schedule B. Schedule B to the Existing Note Purchase
Agreement is hereby amended to modify in their entirety or add, each in their
proper alphabetical order, the following defined terms:
"Consolidated Debt -- means, as of any date of determination,
the total of all Debt of the Company and the Restricted Subsidiaries
outstanding on such date, after eliminating all offsetting debits and
credits between the Company and the Restricted Subsidiaries and all
other items required to be eliminated in the course of the preparation
of consolidated financial statements of the Company and the Restricted
Subsidiaries in accordance with GAAP, provided that Consolidated Debt
shall not include Qualified Capital Obligations."
"Consolidated Net Worth -- means, at any time, the sum,
without duplication, of (a) the total stockholders' equity which would
be shown in consolidated financial statements of the Company and the
Restricted Subsidiaries prepared at such time in accordance with GAAP
plus (b) Qualified Capital."
"Net Proceeds of Qualified Capital -- means, with respect to
any period, cash proceeds (net of all costs and out-of-pocket expenses
incurred in connection therewith and in connection with the issuance
and sale of any related Trust Preferred Securities, including, without
limitation, placement, underwriting and brokerage fees and expenses)
received by the Company during such period from the sale of all
Qualified Junior Subordinated Notes."
"Qualified Capital -- means the total amount of capital in
respect of Qualified Junior Subordinated Notes and the Trust Preferred
Securities related thereto which would, on a consolidated basis, be
shown in consolidated financial statements of the Company and the
Subsidiaries prepared at such time in accordance with GAAP, provided
that in no event shall the aggregate amount of Qualified Capital at any
time exceed One Hundred Twenty-Five Million Dollars ($125,000,000)."
"Qualified Capital Obligations -- means obligations of the
Company in respect of any Qualified Junior Subordinated Notes and
Qualified Junior Subordinated Guaranties."
"Qualified Junior Subordinated Guaranty -- means, in respect
of any issue of Trust Preferred Securities, a Guaranty by the Company
to the holders of such Trust Preferred Securities of (a) the payment of
all preferred cumulative cash dividends accumulating thereon and (b)
the payments due on liquidation or redemption of such Trust Preferred
Securities, but only in each case to the extent of funds held by the
Special Purpose Trust which shall have issued such Trust Preferred
Securities, and the obligations under which Guaranty shall be unsecured
and rank subordinate and junior in right of payment to all Senior Debt
(including, without limitation, all Debt of the Company under this
Agreement, the Other Agreements and the Notes) to the same extent and
on the same terms as the Qualified Junior Subordinated Notes issued by
the Company to such Special Purpose Trust are subordinated to Senior
Debt."
"Qualified Junior Subordinated Notes -- means any notes
issued by the Company to a Special Purpose Trust in a principal amount
equal to the proceeds received by such Special Purpose Trust from the
issuance of Trust Preferred Securities and paid by such Special Purpose
Trust to the Company in consideration for such notes, which notes shall
(a) not mature, or otherwise require the payment of any of the
principal thereof, prior to June 1, 2029, (b) be subject to the right
of the Company to defer the payment of interest thereon at any time or
from time to time for a period of at least twenty (20) consecutive
quarterly periods, during which deferral period the Company shall not
pay any dividends with respect to any of its capital stock or pay any
principal, interest or other amounts owing in respect of any Qualified
Capital Obligations or other Subordinated Debt, (c) be unsecured, (d)
rank subordinate and junior in right of payment to all Senior Debt
(including, without limitation, all Debt of the Company under this
Agreement, the Other Agreements and the Notes) upon the terms set forth
in Exhibit A to the Second Amendment to Note Purchase Agreement, dated
as of July 14, 1999, among the Company and certain holders of Notes and
(e) when aggregated with all other such notes, not exceed One Hundred
Twenty-Five Million Dollars ($125,000,000) in aggregate outstanding
principal amount."
"Special Purpose Trust -- means a statutory business trust
created under the laws of the State of Delaware pursuant to the filing
of a certificate of trust with the Secretary of State of the State of
Delaware, (a) the existence of which shall be for the exclusive purpose
of (i) issuing Trust Common Securities to the Company and issuing and
selling Trust Preferred Securities to investors, (ii) using the
proceeds from such Trust Preferred Securities to acquire Qualified
Junior Subordinated Notes and (iii) engaging in only those other
activities necessary or incidental to the foregoing, (b) the sole
assets of which will be such Qualified Junior Subordinated Notes and
the proceeds thereof and (c) the sole source of revenue of which will
be payments under such Qualified Junior Subordinated Notes.
Notwithstanding anything else herein, any Special Purpose Trust shall
be deemed to be an Unrestricted Subsidiary."
"Subordinated Debt -- means any Debt or other obligations of
the Company (including, without limitation, Qualified Capital
Obligations) other than Senior Debt."
"Trust Common Securities -- means, in respect of a Special
Purpose Trust, securities issued by such Special Purpose Trust
representing common undivided beneficial interests in the assets of
such Special Purpose Trust, one hundred percent (100%) of which
securities shall be legally and beneficially owned by the Company."
"Trust Preferred Securities -- means, in respect of a Special
Purpose Trust, securities issued by such Special Purpose Trust, having
a stated par value and liquidation value and entitling the holders
thereof to the payment (unless deferred) of preferred cumulative cash
distributions at a fixed annual rate, representing preferred undivided
beneficial interests in the assets of such Special Purpose Trust,
provided that at the time of the initial issuance thereof, the Notes
shall receive an investment grade rating from, or an investment grade
rating of the Notes shall be confirmed by, a nationally recognized
rating agency."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which
representations shall survive such execution and delivery), the Company
represents and warrants to the Noteholders that:
(a) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the state of
Delaware;
(b) this Amendment has been duly authorized, executed and
delivered by the Company and this Amendment constitutes a legal, valid
and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(c) the Existing Note Purchase Agreement, as amended by this
Amendment, constitutes the legal, valid and binding obligation,
contract and agreement of the Company enforceable against it in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights
generally;
(d) the execution, delivery and performance by the Company of
this Amendment (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the
consent or approval of any governmental or regulatory body or agency,
and (iii) will not (A) violate (1) any provision of law, statute, rule
or regulation or its certificate of incorporation or bylaws, (2) any
order of any court or any rule, regulation or order of any other agency
or government binding upon it, or (3) any provision of any material
indenture, agreement or other instrument to which it is a party or by
which its properties or assets are or may be bound, or (B) result in a
breach of or constitute (alone or with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument
referred to in clause (iii)(A)(3) of this paragraph (d); and
(e) as of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing.
SECTION 3. MISCELLANEOUS.
3.1 This Amendment shall be construed in connection with and as part
of the Existing Note Purchase Agreement, and except as modified and expressly
amended by this Amendment, all terms, conditions and covenants contained in the
Existing Note Purchase Agreement and the Notes are hereby ratified and shall be
and remain in full force and effect.
3.2 This Amendment constitutes a contract between the Company and the
Noteholders for the uses and purposes hereinabove set forth, and may be executed
in any number of counterparts, each executed counterpart constituting an
original, but all together only one agreement.
3.3 Whenever any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party, and all the
promises and agreements contained in this Amendment by or on behalf of the
Company and the Noteholders shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
3.4 This Amendment constitutes the final written expression of all
of the terms hereof and is a complete and exclusive statement of those terms.
3.5 This Amendment shall be governed by and construed in accordance
with the internal laws of the State of New York.
3.6 This Amendment shall become effective at such time as it has been
executed by the Company and the Required Holders.
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IN WITNESS WHEREOF, the parties hereto have caused the execution of
this Amendment by duly authorized officers of each as of the date hereof.
SEITEL, INC.
By__________________________________
Xxxxx X. Xxxxxx,
Executive Vice President - Finance
Accepted and Agreed to:
[NOTEHOLDER]
By____________________________________
Name:
Title:
EXHIBIT A
Subordination Terms
Note:The term "Securities" refers to the instruments evidencing the debt
subordinated by the following provisions; the term "Holder" refers to
a holder of Securities.
SECTION [1.01]. Securities Subordinate to Senior Indebtedness
The Securities shall be subordinated to Senior Indebtedness as set
forth in this Article [One]. The Company covenants and agrees, and each Holder
of a Security of any series by such Holder's acceptance thereof likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article [One], the indebtedness represented by the Securities of
such series and the payment of the principal amount, interest, premium (if any),
and such other amounts, if any, payable in respect of each and all of the
Securities of such series are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness;
provided, however, that no provision of this Article [One] shall prevent the
occurrence of any default or Event of Default hereunder.
"Senior Notes" means, collectively, (i) (a) the Company's 7.17% Series
A Senior Notes due December 30, 2001 in the original aggregate principal amount
of $25,000,000, (b) the Company's 7.17% Series B Senior Notes due December 30,
2002 in the original aggregate principal amount of $27,500,000, and (c) the
Company's Series C Senior Notes due December 30, 2002 in the original aggregate
principal amount of $22,500,000, in each case, issued pursuant to separate Note
Purchase Agreements, dated as of December 28, 1995, as such notes and agreements
may be amended from time to time, and (ii) (a) the Company's 7.03% Series D
Senior Notes due February 15, 2004 in the original aggregate principal amount of
$20,000,000, (b) the Company's 7.28% Series E Senior Notes due February 15, 2009
in the original aggregate principal amount of $75,000,000, and (c) the Company's
Series F Senior Notes due February 15, 2009 in the original aggregate principal
amount of $43,000,000, in each case, issued pursuant to separate Note Purchase
Agreements, dated as of February 12, 1999, as such notes and agreements may be
amended from time to time.
"Senior Indebtedness" means the principal of (and premium or
make-whole amount, if any) and interest on (including interest, if any, accruing
after the filing of a petition initiating any proceeding pursuant to any Federal
bankruptcy law or any other applicable Federal or State law) and other amounts
due on or in connection with the Senior Notes and any Indebtedness of the
Company incurred, assumed or guaranteed by the Company, whether outstanding on
the date of the Indenture or thereafter incurred, assumed or guaranteed and all
renewals, extensions and refundings of any such Indebtedness of the Company;
provided, however, that the following will not constitute Senior Indebtedness:
(a) any Indebtedness of the Company as to which, in the
instrument creating the same or evidencing the same or pursuant to
which the same is outstanding, it is expressly provided that such
Indebtedness of the Company shall be subordinated to or pari passu with
the Securities;
(b) Indebtedness of the Company in respect of the Securities;
(c) any Indebtedness of the Company constituting trade
accounts payable arising in the ordinary course of business;
(d) any Indebtedness of the Company initially issued to any
other [trust which issues preferred securities or other securities
similar to preferred securities]; and
(e) any Indebtedness of the Company to any Subsidiary of the
Company, other than a trust referred to in the preceding clause (d).
SECTION [1.02]. Payment Over of Proceeds upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness, or provision shall be made for such
payment in cash, before the Holders of the Securities of any series are
entitled to receive any payment on account of the principal amount,
interest, premium (if any), or such other amounts, if any, as may be
provided for in respect of the Securities of such series; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article [One], including any
such payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Securities of such series, shall be
paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of, and premium or make-whole amount, if any, and
interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving affect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section [1.02], the Trustee or the Holder of any Security of any series shall
receive any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company being subordinated to the payment of the
Securities of such series, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall then have been made known
to the Trustee as provided in Section [1.11], or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article [One] only, the words "cash, property or
securities," or any combination thereof, shall be deemed not to include shares
of capital stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article [One] with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding and to any
securities issued to the holders of Senior Indebtedness in respect of the Senior
Indebtedness under any such plan of reorganization or readjustment.
SECTION [1.03]. Prior Payment to Senior Indebtedness upon Acceleration
of Securities.
In the event that any Securities of any series are declared due and
payable before their [Stated Maturity], then and in such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness or provision
shall be made for such payment in cash, before the Holders of the Securities of
such series are entitled to receive any payment (including any payment which may
be payable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities of such series) by the
Company on account of the principal of (or premium or make-whole amount, if any)
or interest or other amounts on Securities of such series or on account of the
purchase or other acquisition of Securities of such series.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section [1.03], and if such facts
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section [1.11]) or to such Holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section [1.03] shall not apply to any payment
with respect to which Section [1.02] would be applicable.
SECTION [1.04]. Default in Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, if any, interest or any other payment due
on any Senior Indebtedness of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of any
default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption payments, if any) of, premium or
make-whole amount, if any, or interest or other amounts on the Securities until
such default is cured or waived or ceases to exist or any such acceleration or
demand for payment has been rescinded.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section [1.04], and if such facts
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section [1.11]) or to such Holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section [1.04] shall not apply to any payment
with respect to which Section [1.02] would be applicable.
SECTION [1.05]. Limitations on Acceleration and Enforcement.
At any time when the Company may not make payments in respect of the
Securities as a result of the application of Section [1.04], no Holder of
Securities will:
(a) accelerate or cause or permit the acceleration of the
maturity of any of the Securities; or
(b) commence, cause the commencement of, participate in or
support any action or proceeding (whether at law or in equity) against
the Company to recover all or any part of the indebtedness represented
by the Securities or any action to commence or prosecute any bankruptcy
or similar proceeding in respect of the Company unless the holders of
at least a majority in principal amount of the Senior Notes at the time
outstanding (exclusive of Senior Notes then owned by the Company or any
of its subsidiaries or affiliates) shall have agreed in writing in
advance to, and shall have joined in, such proceedings.
SECTION [1.06]. Payment Permitted if No Default.
Nothing contained in this Article [One] or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section [1.02] or under the
conditions described in Sections [1.03] or [1.04], from making payments at any
time of the principal amount, interest or such other amounts, if any, as may be
provided for in this Indenture, as the case may be, in respect of the
Securities, or (b) the application by the Trustee or the retention by any Holder
of any money deposited with it hereunder to the payment of or on account of the
principal amount, interest or such other amounts, if any, as may be provided for
in this Indenture, as the case may be, in respect of the Securities if the
Trustee did not have, at the time provided in the proviso to the first paragraph
of Section [1.11], notice that such payment would have been prohibited by the
provisions of this Article [One].
SECTION [1.07]. Subrogation Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities of any series shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article [One] to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of cash, property
or securities applicable to the Senior Indebtedness until the principal amount,
interest or such other amounts, if any, as provided for in this Indenture, as
the case may be, in respect of the Securities of such series shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities of such series or the Trustee would be entitled
except for the provisions of this Article [One], and no payments pursuant to the
provisions of this Article [One] to the Company or to the holders of Senior
Indebtedness by Holders of the Securities of such series or the Trustee, shall,
as between the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION [1.08]. Provision Solely to Define Relative Rights.
The provisions of this Article [One] are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities of
any series, on one hand, and the holders of Senior Indebtedness, on the other
hand. Nothing contained in this Article [One] or elsewhere in this Indenture or
in the Securities of any series is intended to or shall:
(a) impair, as between the Company and the Holders of the
Securities of such series, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities of
such series the principal amount, interest or such other amounts, if
any, as may be provided for in this Indenture, as the case may be, in
respect of the Securities of such series as and when the same shall
become due and payable in accordance with the terms of the Securities
of such series and this Indenture and which, subject to the rights
under this Article [One] of the holders of Senior Indebtedness, is
intended to rank equally with all other general obligations of the
Company; or
(b) affect the relative rights against the Company of the
Holders of the Securities of such series and creditors of the Company
other than holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of such
series from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article [One] of the holders of Senior Indebtedness to
receive cash, property or securities otherwise payable or deliverable
to the Trustee or such Holder.
SECTION [1.09]. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article [One] and appoints the Trustee such Holder's attorney-in-fact for
any and all such purposes.
SECTION [1.10]. No Waiver of Subordination Provision.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities of any series, without incurring responsibility to the Holders of the
Securities of such series and without impairing or releasing the subordination
provided in this Article [One] or the obligations hereunder of the Holders of
the Securities of such series to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, or increase the amount of,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
dispose of or deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any manner for the
payment or collection of Senior Indebtedness; (iv) exercise or refrain from
exercising any rights against the Company or any other person; and (v) apply any
sums paid in respect of Senior Indebtedness to Senior Indebtedness, regardless
of who made such payment or how such payment was realized.
SECTION [1.11]. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities of any series. Failure to give such
notice shall not affect the subordination of the Securities of such series to
Senior Indebtedness. Notwithstanding the provisions of this Article [One] or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities of such series, unless
and until the Trustee shall have received written notice thereof in the manner
prescribed by this Indenture from the Company or a holder of Senior Indebtedness
or from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section [regarding the
duties and responsibilities of the Trustee], shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee shall
not have received, at least three Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal amount, interest, or such other
amounts as may be provided for in this Indenture in respect of any Security),
the notice with respect to such money provided for in this Section [1.11], then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have the full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section [regarding the duties and
responsibilities of the Trustee], the Trustee shall be entitled to rely on the
delivery to it of a written notice by a person representing himself to be a
holder of Senior Indebtedness (or a trustee or agent on behalf of such holder)
to establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee or agent on behalf of any such holder). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article [One], the Trustee may
request such person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such person, the extent
to which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article
[One], and if such evidence is not furnished, the Trustee may defer any payment
which it may be required to make for the benefit of such person pursuant to the
terms of this Indenture pending judicial determination as to the right of such
person to receive such payment.
SECTION [1.12].Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article [One], the Trustee, subject to the provisions of Section
[regarding the duties and responsibilities of the Trustee], and the Holders of
the Securities of any series shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities of such series, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
[One].
SECTION [1.13]. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall be deemed not to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be charged with knowledge
of the existence of Senior Indebtedness (other than the Senior Notes) or of any
facts that would prohibit any payment hereunder unless the Trustee shall have
received notice thereof in the manner prescribed by this Indenture. With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligation as are specifically set forth
in this Article [One] and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION [1.14]. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article [One] with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article [One] shall apply to claims of, or payments
to, the Trustee under or pursuant to Section [concerning fees and expenses of
the Trustee].
SECTION [1.15]. Article [One] Applicable to Paying Agents.
The term "Trustee" as used in this Article [One] shall (unless the
context otherwise requires) be construed as extending to and including the
Paying Agent within its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article [One] in addition to or in place of the
Trustee; provided, however, that Sections [1.11] and [1.13] shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
