EXECUTION COPY
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INDENTURE,
Dated as of May 15, 2007
AMONG
DUNE ENERGY, INC.
as Issuer,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
AND
THE BANK OF NEW YORK,
as Trustee and Collateral Agent
10 1/2 % Senior Secured Notes due 2012
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310(a)(1).................................................... 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. 7.10
(a)(4)................................................. N.A.
(a)(5)................................................. 7.10
(b)..................................................... 7.03; 7.08; 7.10
(c)..................................................... N.A.
311(a)..................................................... 7.03; 7.11
(b)..................................................... 7.03; 7.11
(c)..................................................... 7.03
312(a) ..................................................... 2.05
(b)..................................................... 7.07; 11.03
(c)..................................................... 11.03
313(a) ..................................................... 7.06
(b)(1)................................................. 7.06
(b)(2)................................................. 7.06
(c)..................................................... 7.06
(d)..................................................... 7.06
314(a)....................................................... 4.06; 4.08
(b)..................................................... 12.03
(c)(1)................................................. 4.06; 11.04
(c)(2)................................................. 11.04
(c)(3)................................................. 4.06
(d)..................................................... 12.04
(e)..................................................... 11.05
(f)..................................................... N.A.
315(a) ..................................................... 7.01(b)
(b)..................................................... 7.05
(c)..................................................... 7.01(a)
(d)..................................................... 7.01(c)
(e)..................................................... 6.11
316(a)(last sentence)........................................ 2.09
(a)(1)(A).............................................. 6.05
(a)(1)(B).............................................. 6.04
(a)(2)................................................. N.A.
(b)..................................................... 6.07
(c)..................................................... 9.04
317(a)(1) ................................................. 6.08
(a)(2)................................................. 6.09
(b)..................................................... 2.04
318(a)....................................................... 11.01
(b)..................................................... N.A.
(c)..................................................... 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
Table of Contents
Page
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.................1
Section 1.01. Definitions................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act.........25
Section 1.03. Rules of Construction.....................................25
ARTICLE TWO THE NOTES.................................................26
Section 2.01. Form and Dating...........................................26
Section 2.02. Execution and Authentication; Aggregate Principal Amount..27
Section 2.03. Registrar and Paying Agent................................27
Section 2.04. Obligations of Paying Agent...............................28
Section 2.05. Holder Lists..............................................28
Section 2.06. Transfer and Exchange.....................................28
Section 2.07. Replacement Notes.........................................29
Section 2.08. Outstanding Notes.........................................29
Section 2.09. Treasury Notes; When Notes Are Disregarded................29
Section 2.10. Temporary Notes...........................................30
Section 2.11. Cancellation..............................................30
Section 2.12. CUSIP Numbers.............................................30
Section 2.13. Deposit of Moneys.........................................30
Section 2.14. Book-Entry Provisions for Global Notes....................30
Section 2.15. Special Transfer Provisions...............................32
ARTICLE THREE REDEMPTION................................................33
Section 3.01. Optional Redemption.......................................33
Section 3.02. Mandatory Redemption......................................34
Section 3.03. Selection of Notes to Be Redeemed.........................34
Section 3.04. Notice of Redemption......................................35
Section 3.05. Effect of Notice of Redemption............................35
Section 3.06. Deposit of Redemption Price...............................36
Section 3.07. Notes Redeemed in Part....................................36
ARTICLE FOUR COVENANTS.................................................36
Section 4.01. Payment of Notes..........................................36
Section 4.02. Maintenance of Office or Agency...........................36
Section 4.03. Corporate Existence.......................................36
Section 4.04. Payment of Taxes and Other Claims.........................37
Section 4.05. Maintenance of Properties and Insurance...................37
Section 4.06. Compliance Certificate; Notice of Default.................37
Section 4.07. Compliance with Laws......................................38
Section 4.08. Reports to Holders........................................38
Section 4.09. Waiver of Stay, Extension or Usury Laws...................39
Section 4.10. Limitation on Restricted Payments.........................39
(i)
Section 4.11. Limitations on Transactions with Affiliates...............42
Section 4.12. Limitation on Incurrence of Additional Indebtedness.......43
Section 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.........................44
Section 4.14. Additional Guarantees.....................................45
Section 4.15. Repurchase upon Change of Control.........................46
Section 4.16. Limitation on Asset Sales.................................47
Section 4.17. Limitation on Liens.......................................49
Section 4.18. Conduct of Business.......................................49
Section 4.19. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries..............................................49
Section 4.20. Payments for Consent......................................49
Section 4.21. Impairment of Security Interest...........................49
Section 4.22. Real Estate Mortgages and Filings.........................50
Section 4.23. Oil and Gas Mortgages and Filings.........................50
Section 4.24. Leasehold Mortgages and Filings; Landlord Waivers.........51
Section 4.25. Other Collateral..........................................51
Section 4.26. Additional Interest.......................................52
ARTICLE FIVE SUCCESSOR CORPORATION.....................................52
Section 5.01. Merger, Consolidation and Sale of Assets..................52
Section 5.02. Successor Corporation Substituted.........................54
ARTICLE SIX DEFAULT AND REMEDIES......................................54
Section 6.01. Events of Default.........................................54
Section 6.02. Acceleration..............................................55
Section 6.03. Other Remedies............................................56
Section 6.04. Waiver of Past Defaults...................................56
Section 6.05. Control by Majority.......................................57
Section 6.06. Limitation on Suits.......................................57
Section 6.07. Rights of Holders to Receive Payment......................58
Section 6.08. Collection Suit by Trustee or Collateral Agent............58
Section 6.09. Trustee May File Proofs of Claim..........................58
Section 6.10. Priorities................................................58
Section 6.11. Undertaking for Costs.....................................59
Section 6.12. Restoration of Rights and Remedies........................59
Section 6.13. Rights and Remedies Cumulative............................59
Section 6.14. Delay or Omission not Waiver..............................59
ARTICLE SEVEN TRUSTEE...................................................60
Section 7.01. Duties of Trustee.........................................60
Section 7.02. Rights of Trustee.........................................61
Section 7.03. Individual Rights of Trustee..............................62
Section 7.04. Trustee's Disclaimer......................................63
Section 7.05. Notice of Default.........................................63
Section 7.06. Reports by Trustee to Holders.............................63
Section 7.07. Compensation and Indemnity................................64
Section 7.08. Replacement of Trustee....................................65
Section 7.09. Successor Trustee by Merger, Etc..........................66
(ii)
Section 7.10. Eligibility; Disqualification.............................66
Section 7.11. Preferential Collection of Claims Against Company.........66
Section 7.12. Trustee as Collateral Agent and Paying Agent..............66
Section 7.13. Co-Trustees, Co-Collateral Agent and Separate Trustees,
Collateral Agent..........................................67
ARTICLE EIGHT SATISFACTION AND DISCHARGE OF INDENTURE...................68
Section 8.01. Legal Defeasance and Covenant Defeasance..................68
Section 8.02. Satisfaction and Discharge................................70
Section 8.03. Survival of Certain Obligations...........................71
Section 8.04. Acknowledgment of Discharge by Trustee....................71
Section 8.05. Application of Trust Moneys...............................71
Section 8.06. Repayment to the Company; Unclaimed Money.................71
Section 8.07. Reinstatement.............................................72
Section 8.08. Indemnity for Government Obligations......................72
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS.......................72
Section 9.01. Without Consent of Holders................................72
Section 9.02. With Consent of Holders...................................73
Section 9.03. Compliance with TIA.......................................74
Section 9.04. Revocation and Effect of Consents.........................74
Section 9.05. Notation on or Exchange of Notes..........................75
Section 9.06. Trustee to Sign Amendments, Etc...........................75
Section 9.07. Conformity with Trust Indenture Act.......................75
ARTICLE TEN GUARANTEE.................................................75
Section 10.01. Guarantee.................................................75
Section 10.02. Release of a Guarantor....................................76
Section 10.03. Limitation of Guarantor's Liability.......................77
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms........77
Section 10.05. Contribution..............................................78
Section 10.06. Waiver of Subrogation.....................................78
Section 10.07. Evidence of Guarantee.....................................78
Section 10.08. Waiver of Stay, Extension or Usury Laws...................78
ARTICLE ELEVEN MISCELLANEOUS.............................................79
Section 11.01. Trust Indenture Act Controls..............................79
Section 11.02. Notices...................................................79
Section 11.03. Communications by Holders with Other Holders..............80
Section 11.04. Certificate and Opinion as to Conditions Precedent........80
Section 11.05. Statements Required in Certificate or Opinion.............80
Section 11.06. Rules by Trustee, Paying Agent, Registrar.................80
Section 11.07. Legal Holidays............................................80
Section 11.08. Governing Law.............................................81
Section 11.09. No Adverse Interpretation of Other Agreements.............81
Section 11.10. No Recourse Against Others................................81
Section 11.11. Successors................................................81
Section 11.12. Duplicate Originals.......................................81
(iii)
Section 11.13. Severability..............................................81
Section 11.14. Waiver of Jury Trial......................................81
Section 11.15. Force Majeure.............................................81
ARTICLE TWELVE AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY.....82
Section 12.01. Grant of Security Interest................................82
Section 12.02. Intercreditor Agreement...................................82
Section 12.03. Recording and Opinions....................................83
Section 12.04. Release of Collateral.....................................83
Section 12.05. Specified Releases of Collateral..........................84
Section 12.06. Release upon Satisfaction or Defeasance of all
Outstanding Obligations...................................85
Section 12.07. Form and Sufficiency of Release...........................85
Section 12.08. Purchaser Protected.......................................85
Section 12.09. Authorization of Actions to Be Taken by the Collateral
Agent Under the Collateral Agreements.....................85
Section 12.10. Authorization of Receipt of Funds by the Collateral
Agent Under the Collateral Agreements.....................86
Section 12.11. Trustee Not Fiduciary for Holders of
First Priority Claims.....................................86
EXHIBITS:
Exhibit A -- Form of Initial Note
Exhibit B -- Form of Exchange Note
Exhibit C -- Form of Legend for Global Notes
Exhibit D -- Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit E -- Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
NOTE: This Table of Contents shall not, for any purpose, be deemed
to be part of this Indenture.
(iv)
INDENTURE, dated as of May 15, 2007, among Dune Energy, Inc., a
Delaware corporation (the "Company"), the Guarantors (as herein defined) and The
Bank of New York, as Trustee (in such capacity, the "Trustee") and Collateral
Agent (in such capacity, the "Collateral Agent").
W I T N E S S E T H :
WHEREAS, the Company and the Guarantors (with respect to the
Guarantees) have duly authorized the creation of an issue of 10 1/2 % Senior
Secured Notes due 2012 (the "Initial Notes"), and 10 1/2 % Senior Secured
Exchange Notes due 2012 (the "Exchange Notes," and together with the Initial
Notes and any Additional Notes (as herein defined), the "Notes") and the
Guarantees (as herein defined) and, to provide therefor, the Company and the
Guarantors have duly authorized the execution and delivery of this Indenture;
and
WHEREAS, all things necessary to make the Notes and Guarantees, when
each are duly issued and executed by the Company and the Guarantors, as
applicable, and authenticated and delivered hereunder, the valid and legally
binding obligations of each of the Company and the Guarantors, respectively, and
to make this Indenture a valid and legally binding agreement of each of the
Company and the Guarantors, have been done.
NOW, THEREFORE, each party hereto agrees as follows for the benefit
of the other parties and for the equal and ratable benefit of the Holders:
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Acceleration Notice" has the meaning set forth in Section 6.02(a).
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries (a) existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Restricted Subsidiaries or (b) assumed in connection
with the acquisition of assets from such Person and in each case not incurred by
such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary of the Company or such acquisition,
merger or consolidation and which Indebtedness is without recourse to the
Company or any of its Subsidiaries or to any of their respective properties or
assets other than the Person or the assets to which such Indebtedness related
prior to the time such Person became a Restricted Subsidiary of the Company or
the time of such acquisition, merger or consolidation.
"Additional Interest" has, with respect to the Notes that are
entitled to the benefits of a Registration Rights Agreement, the meaning set
forth in such Registration Rights Agreement.
"Additional Notes" means any Notes that are not Exchange Notes
issued after the Issue Date from time to time in accordance with the terms of
this Indenture including, without limitation, the provisions of Section 2.02 and
4.12.
"Administrative Agent" has the meaning set forth in the definition
of the term "Credit Agreement."
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
provided that Beneficial Ownership of 10% or more of the Voting Stock of the
Person shall be deemed to be control. The terms "controlling" and "controlled"
have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning set forth in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning set forth in Section 2.14(a) and
means, with respect to the Depository, Euroclear or Clearstream, a Person who
has an account with the Depository, Euroclear or Clearstream, respectively (and,
with respect to the Depository, shall include Euroclear and Clearstream).
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Acquisition" means:
(1) an Investment by the Company or any Restricted Subsidiary of the
Company in any other Person pursuant to which such Person shall become a
Restricted Subsidiary of the Company or any Restricted Subsidiary of the
Company, or shall be merged with or into the Company or any Restricted
Subsidiary of the Company, or
(2) the acquisition by the Company or any Restricted Subsidiary of
the Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all of
the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer (other than a Lien in
accordance with this Indenture) for value by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or a Guarantor of:
(1) any Capital Stock of any Restricted Subsidiary of the Company;
or
(2) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include:
(a) a transaction or series of related transactions for which
the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $1.0 million;
(b) the sale, lease, conveyance, disposition or other transfer
of all or substantially all of the assets of the Company as
permitted under Section 5.01;
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(c) any Restricted Payment permitted under Section 4.10
including a Permitted Investment;
(d) the sale of Cash Equivalents;
(e) the sale or other disposal of the Collateral pursuant to
the exercise of any remedies pursuant to the documents relating to
any First Priority Claims that are permitted under this Indenture
and secured by Permitted Liens of the type described in clause (11),
(15) or (18) of the definition thereof;
(f) the sale or other disposition of used, worn out, obsolete
or surplus equipment; and
(g) the abandonment, assignment, lease, sub-lease or farm-out
of oil and gas properties or, the forfeiture or other disposition of
such properties, pursuant to operating agreements or other
instruments or agreements that, in each case, are entered into in a
manner that is customary in the Oil and Gas Business (but not
including sales of dollar denominated or volumetric production
payments, which shall be considered Asset Sales).
"Authenticating Agent" has the meaning set forth in Section 2.02.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, and codified as 11 U.S.C. ss.ss.101 et seq.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficial Ownership," "Beneficially Owns" and
"Beneficially Owned" have meanings correlative to the foregoing.
"Board of Directors" means, as to any Person, the board of directors
or similar governing body of such Person or any duly authorized committee
thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of
Common Stock and Other Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation, any and
all partnership, membership or other equity interests of such Person; and
-3-
(3) any warrants, rights or options to purchase any of the
instruments or interests referred to in clause (1) or (2) above.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency
thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Ratings Group
("S&P") or Xxxxx'x Investors Service, Inc. ("Moody's");
(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia or any U.S. branch of a foreign bank having at the
date of acquisition thereof combined net capital and surplus of not less
than $250.0 million;
(5) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (1) above
entered into with any bank meeting the qualifications specified in clause
(4) above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"CFC Subsidiary" means any Subsidiary that is a "controlled foreign
corporation" within the meaning of Section 957 of the Internal Revenue Code of
1986, as amended.
"Change of Control" means the occurrence of one or more of the
following events:
(1) any direct or indirect sale, lease, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one
transaction or a series of related transactions, of all or substantially
all of the assets of the Company to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group");
(2) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the
Company, other than any such transaction where the Voting Stock of the
Company outstanding immediately prior to such transaction is converted
into or exchanged for Voting Stock (other than Disqualified Capital Stock)
of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee
Person (immediately after giving effect to such issuance);
-4-
(3) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation, winding up or dissolution of the
Company;
(4) the consummation of any transaction (including without
limitation, any merger or consolidation) the result of which is that any
Person or Group is or becomes the Beneficial Owner, directly or
indirectly, in the aggregate of more than 35% of the total voting power of
the Voting Stock of the Company; or
(5) individuals who on the Issue Date constituted the Board of
Directors of the Company (together with any new directors whose election
by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved pursuant to a vote of a majority
of the directors then still in office who were either directors on the
Issue Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office.
"Change of Control Offer" has the meaning set forth in Section
4.15(a).
"Change of Control Payment Date" has the meaning set forth in
Section 4.15(b)(2).
"Clearstream" means Clearstream Banking, societe anonyme.
"Collateral" shall mean Collateral as such term is defined in the
Security Agreement, Other Collateral, all property mortgaged under the Mortgages
and any other property, whether now owned or hereafter acquired, upon which a
Lien securing the Obligations under this Indenture, the Collateral Agreements,
the Notes and the Guarantees is granted or purported to be granted under any
Collateral Agreement; provided, however, that Collateral shall not include any
Excluded Collateral.
"Collateral Agent" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Collateral Agreements" means, collectively, the Intercreditor
Agreement, the Security Agreement, each Mortgage and each other instrument
creating Liens in favor of the Trustee as required by this Indenture, in each
case, as the same may be in force from time to time.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of:
(1) Consolidated Net Income; and
-5-
(2) to the extent Consolidated Net Income has been reduced thereby:
(a) all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such
period;
(b) Consolidated Interest Expense;
(c) Consolidated Non-cash Charges less any non-cash items
increasing Consolidated Net Income for such period; and
(d) restructuring costs (including employee relocations costs)
and integration expenses and charges that are identified at the time
of closing of any acquisition as resulting from such acquisition
(including, without limitation, cash severance payments and facility
closures);
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four
consecutive full fiscal quarters (the "Four Quarter Period") most recently
ending on or prior to the date of the transaction or event giving rise to the
need to calculate the Consolidated Fixed Charge Coverage Ratio for which
financial statements are available (the "Transaction Date") to Consolidated
Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes
of this definition, "Consolidated EBITDA" and "Consolidated Fixed Charge" shall
be calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence or repayment of any Indebtedness of such Person
or any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant
to working capital facilities, occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on
or prior to the Transaction Date, as if such incurrence or repayment, as
the case may be (and the application of the proceeds thereof), occurred on
the first day of the Four Quarter Period; and
(2) any Asset Sale or other disposition or Asset Acquisition
(including, without limitation, any Asset Acquisition giving rise to the
need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of any such Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date), as if such Asset
Sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Indebtedness or Acquired Indebtedness
and also including any Consolidated EBITDA associated with such Asset
Acquisition) occurred on the first day of the Four Quarter Period,
provided that the Consolidated EBITDA of any Person acquired shall be
included only to the extent includible pursuant to the definition of
"Consolidated Net Income." If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third
Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted Subsidiary of
such Person had directly incurred or otherwise assumed such guaranteed
Indebtedness.
-6-
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio":
(1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date (including Indebtedness actually incurred
on the Transaction Date) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal
to the rate of interest on such Indebtedness in effect on the Transaction
Date; and
(2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Hedging Obligations, shall be deemed to accrue
at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all dividend payments on any
series of Other Preferred Stock of such Person (other than dividends paid
in Qualified Capital Stock) paid, accrued or scheduled to be paid or
accrued during such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed
as a decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, as determined
in accordance with GAAP, and including, without duplication, (a) all
amortization or accretion of original issue discount; (b) the interest component
of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during such period; and
(c) net cash costs under all Interest Swap Obligations (including amortization
of fees); but excluding the amortization or write-off during such period of
capitalized financing or debt issuance costs.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, however, that there shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or abandonments or
reserves relating thereto;
(2) after-tax items classified as extraordinary gains or losses;
(3) the net income (but not loss) of any Restricted Subsidiary of
the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is
restricted by a contract, operation of law or otherwise;
-7-
(4) the net income of any Person, other than the referent Person or
a Restricted Subsidiary of the referent Person, except to the extent of
cash dividends or distributions paid to the referent Person or to a
Wholly-Owned Restricted Subsidiary of the referent Person by such Person;
(5) any restoration to income of any material contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
(6) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued);
(7) all gains and losses realized on or because of the purchase or
other acquisition by such Person or any of its Restricted Subsidiaries of
any securities of such Person or any of its Restricted Subsidiaries;
(8) the cumulative effect of a change in accounting principles;
(9) interest expense attributable to dividends on Qualified Capital
Stock pursuant to Statement of Financial Accounting Standards No. 150,
"Accounting for Certain Financial Instruments with Characteristics of both
Liabilities and Equity";
(10) non-cash charges resulting from the impairment of intangible
assets;
(11) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; and
(12) non-cash compensation charges or other non-cash expenses or
charges arising from the grant of or issuance or repricing of stock, stock
options or other equity-based awards or any amendment, modification,
substitution or change of any such stock, stock options or other
equity-based awards.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of the Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person,
for any period, the aggregate depreciation, amortization and other non-cash
items and expenses of such Person and its Restricted Subsidiaries to the extent
they reduce Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or loss
or any such charge which requires an accrual of or a reserve for cash charges
for any future period).
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate
Trust Administration.
"Covenant Defeasance" has the meaning set forth in Section 8.01(c).
-8-
"Credit Agreement" means the Credit Agreement between the Company
and the lenders party thereto (together with their successors and assigns, the
"Lenders") and the administrative agent (in such capacity, together with its
successors and assigns, named therein as "Administrative Agent"), setting forth
the terms and conditions of the senior revolving credit facility, together with
the related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended, supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted under clause
(2) or (15) of the definition of the term "Permitted Indebtedness") or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under the Bankruptcy Code.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" means The Depository Trust Company, its nominees and
successors ("DTC").
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event that would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof (except in each case, upon the occurrence of a Change of Control)
on or prior to the first anniversary of the final maturity date of the Notes for
cash or is convertible into or exchangeable for debt securities of the Company
or its Subsidiaries at any time prior to such anniversary.
"Domestic Restricted Subsidiary" means, with respect to any Person,
a Domestic Subsidiary of such Person that is a Restricted Subsidiary of such
Person.
"Domestic Subsidiary" means, with respect to any Person, a
Subsidiary of such Person that is not a CFC Subsidiary of such Person.
"Equity Offering" means an underwritten public offering of Common
Stock of the Company or any holding company of the Company pursuant to a
registration statement filed with the Commission (other than on Form S-8) or any
private placement of Common Stock of the Company or any holding company of the
Company to any Person other than issuances upon exercise of options by employees
of any holding company, the Company or any of the Restricted Subsidiaries.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"Event of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
-9-
"Exchange Notes" has the meaning set forth in the preamble to this
Indenture and means the Notes, if any, issued under Section 2.02 pursuant to the
Registration Rights Agreement.
"Exchange Offer" means an exchange offer that may be made by the
Company, pursuant to the Registration Rights Agreement, to exchange for any and
all the Notes a like aggregate principal amount of Notes having substantially
identical terms to the Notes registered under the Securities Act.
"Excluded Collateral" means:
(i) the Voting Stock of any CFC Subsidiary in excess of 65% of the
outstanding Voting Stock of such CFC Subsidiary owned directly or indirectly by
the Company;
(ii) motor vehicles;
(iii) rights under any contracts, leases or other instruments that
contain a valid and enforceable prohibition on assignment of such rights
(other than to the extent that any such prohibition would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
Uniform Commercial Code of any relevant jurisdiction or any other
applicable law or principles of equity), but only for so long as such
prohibition exists and is effective and valid;
(iv) property and assets owned by the Company or any Guarantors that
are the subject of Permitted Liens described in clause (6) or (7) of the
definition thereof for so long as such Permitted Liens are in effect and
the Indebtedness secured thereby otherwise prohibits any other Liens
thereon;
(v) property and assets owned by the Company or any Guarantor in
which a Lien may not be granted without governmental approval or consent
or in which the granting of a Lien is prohibited by applicable law (but
only for so long as the Company or the applicable Guarantor has not
obtained such approval or consents);
(vi) deposits described in clause (3) or (10) of the definition of
Permitted Liens; and
(vii) Oil and Gas Properties of the Company and its Subsidiaries to
which no proved reserves of oil and gas are attributed except to the
extent that Liens on such oil and gas properties are at any time granted
to secure the Obligations under the Credit Agreement, in which event Liens
on such oil and gas properties must also be granted to secure the Notes or
Guarantees, as appropriate.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined by the Board of Directors of the Company acting in
good faith; provided, however, that with respect to any price less than $2.5
million only the good faith determination by the Company's senior management
shall be required.
"First Priority Agent" means the Administrative Agent and any
successor designated as such by the holders of First Priority Claims.
"First Priority Cash Management Obligations" means all obligations
of the Company and the Guarantors in respect of overdrafts and related
liabilities owed to any other Person that arise from treasury, depositary or
cash management services, including in connection with any automated clearing
house transfers of funds, or any similar transactions, secured by any assets
constituting Collateral under the documents that secure Obligations under the
Credit Agreement.
-10-
"First Priority Claims" means (a) Indebtedness under the Credit
Agreement permitted pursuant to clause (2) or (15) of the definition of the term
"Permitted Indebtedness," (b) First Priority Cash Management Obligations and
First Priority Hedging Obligations, and (c) all other Obligations under the
documents relating to Indebtedness described in clauses (a) and (b) above.
"First Priority Hedging Obligations" means all Hedging Obligations
secured by any assets constituting Collateral under the documents that secure
Obligations under the Credit Agreement.
"GAAP" means accounting principles generally accepted in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global Notes" has the meaning set forth in Section 2.01.
"Goldking Acquisition" means the acquisition by the Company of all
of the issued and outstanding Capital Stock of Goldking Energy Corporation, a
Delaware corporation pursuant to the Goldking Acquisition Agreement.
"Goldking Acquisition Agreement" means the stock purchase and sale
agreement, dated as of April 16, 2007, effective as of April 13, 2007, among the
Company, Goldking Energy Corporation, a Delaware corporation, and Goldking
Energy Holdings, L.P.
"Guarantee" has the meaning set forth in Section 10.01.
"Guarantor" means (1) each of the Company's Domestic Restricted
Subsidiaries existing on the Issue Date and (2) each of the Company's Domestic
Restricted Subsidiaries that in the future executes a supplemental indenture in
which such Domestic Restricted Subsidiary agrees to be bound by the terms of
this Indenture as a Guarantor; provided that any Person constituting a Guarantor
as described above shall cease to constitute a Guarantor when its respective
Guarantee is released in accordance with the terms of this Indenture.
"Hedging Obligations" means the obligations of the Company or any of
its Restricted Subsidiaries pursuant to agreements (1) designed to protect the
Company or any of its Restricted Subsidiaries against (a) fluctuations in
interest rates in respect of Indebtedness of the Company or such Restricted
Subsidiary or (b) fluctuations in currency exchange rates or commodity prices
and (2) entered into in the ordinary course of business and not for purposes of
speculation.
"Holder" means the Person in whose name a Note is registered on the
registrar's books.
"Hydrocarbons" means oil, gas, casinghead gas, drip gasoline,
natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons and all products refined or separated therefrom.
"Indebtedness" means with respect to any Person, without
duplication:
(1) all Obligations of such Person for borrowed money;
-11-
(2) all Obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations and all
Obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and any deferred purchase price represented by earn
outs);
(5) all Obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction,
whether or not then due;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clause (8)
below;
(7) all Obligations of any other Person of the type referred to in
clauses (1) through (6) which are secured by any Lien on any property or
asset of such Person, the amount of any such Obligation being deemed to be
the lesser of the Fair Market Value of the property or asset securing such
Obligation or the amount of such Obligation;
(8) all Hedging Obligations; and
(9) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any.
Notwithstanding the foregoing, Indebtedness shall not include any
Qualified Capital Stock. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
"Indemnified Party" has the meaning set forth in Section 7.07.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a nationally-recognized
accounting, appraisal or investment banking firm: (1) that does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (2) that, in the judgment of the
Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Notes" has the meaning set forth in the preamble of this
Indenture.
-12-
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Intercreditor Agreement" means the Intercreditor Agreement, to be
entered into concurrently with the Credit Agreement among the First Priority
Agent, the Collateral Agent, the Company and the Guarantors, as the same may be
amended, supplemented or modified from time to time.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition for value of Capital Stock, Indebtedness
or other similar instruments issued by such Person. If the Company or any
Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock
of a Person that is a Restricted Subsidiary such that, after giving effect
thereto, such Person is no longer a Restricted Subsidiary, any Investment by the
Company or any Restricted Subsidiary in such Person remaining after giving
effect thereto will be deemed to be a new Investment at such time. The
acquisition by the Company or any Restricted Subsidiary of a Person that holds
an Investment in a third Person will be deemed to be an Investment by the
Company or such Restricted Subsidiary in such third Person at such time. Except
as otherwise provided for herein, the amount of an Investment shall be its Fair
Market Value at the time the Investment is made and without giving effect to
subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary," the
definition of "Restricted Payment" and Section 4.10:
(i) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary equal to an amount (if positive) equal to
(A) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (B) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation; and
(ii) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Company.
-13-
"Issue Date" means the date of original issuance of the Notes.
"Legal Defeasance" has the meaning set forth in Section 8.01(b).
"Legal Holiday" has the meaning set forth in Section 11.07.
"Lenders" has the meaning set forth in the definition of the term
"Credit Agreement."
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means June 1, 2012.
"Mortgages" means the mortgages, deeds of trust, deeds to secure
Indebtedness or other similar documents granting Liens on the Company and its
Restricted Subsidiaries' oil and gas properties and interests, Premises and/or
Leased Premises to secure the Notes.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions);
(2) all taxes and other costs and expenses actually paid or
estimated by the Company (in good faith) to be payable in cash in
connection with such Asset Sale;
(3) repayment of Indebtedness that is secured by the property or
assets that are the subject of such Asset Sale and is required to be
repaid in connection with such Asset Sale; and
(4) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Asset Sale;
provided, however, that if, after the payment of all taxes with respect to such
Asset Sale, the amount of estimated taxes, if any, pursuant to clause (2) above
exceeded the tax amount actually paid in cash in respect of such Asset Sale, the
aggregate amount of such excess shall, at such time, constitute Net Cash
Proceeds.
"Net Proceeds Offer" has the meaning set forth in Section
4.16(3)(c).
"Net Proceeds Offer Amount" has the meaning set forth in Section
4.16(3)(c).
"Net Proceeds Offer Payment Date" has the meaning set forth in
Section 4.16(3)(c).
"Net Proceeds Offer Trigger Date" has the meaning set forth in
Section 4.16(3)(c).
-14-
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" has the meaning set forth in the preamble to this Indenture
and means the Initial Notes, the Additional Notes, if any, and the Exchange
Notes treated as a single class of securities, as amended or supplemented from
time to time in accordance with the terms hereof, that are issued pursuant to
this Indenture.
"Obligations" means all obligations for principal, premium,
interest, Additional Interest, (including, without limitation, interest
occurring after an insolvency, bankruptcy or similar proceeding, whether or not
such interest is an allowed claim in any such proceeding), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes hereunder.
"Offering Circular" means the offering circular relating to the
Offering.
"Officer" means the Chief Executive Officer, the President, the
Chief Financial Officer or any Vice President of the Company.
"Officers' Certificate" means a certificate signed by two Officers
of the Company, at least one of whom shall be the principal financial officer of
the Company, and delivered to the Trustee and/or the Collateral Agent, as the
context may require.
"Oil and Gas Assets" means (a) any and all Oil and Gas Properties;
(b) any and all properties now or hereafter pooled or unitized with Oil and Gas
Properties; (c) any and all presently existing or future unitization,
communitization, or pooling agreements and declarations of pooled units and the
units created thereby (including without limitation all units created under
orders, regulations rules or other official acts of any federal, state or other
governmental body, agency or authority) that affect any Oil and Gas Property;
(d) any and all operating agreements, contracts and other agreements, including
production sharing contracts and agreements, that relate to any Oil and Gas
Property or the production, sale, purchase, exchange or processing, handling,
storage, transporting or marketing of Hydrocarbons from or attributable to any
Oil and Gas Property; (e) any and all Hydrocarbons in and under and which may be
produced and saved from, or are attributable to, any Oil and Gas Property,
including all oil in tanks, and all rents, issues, profits, proceeds, products,
revenues and other incomes from or attributable to any Oil and Gas Property; (f)
all tenements, hereditaments, appurtenances and properties in any manner
appertaining, belonging, affixed or incidental to any Oil and Gas Property and
(g) all properties, rights, titles, interests and estates described or referred
to above, including any and all property, real or personal, immovable or
immovable, that is now owned or hereafter acquired and situated upon, used, held
for use or useful in connection with the operating, working or development of
any Oil and Gas Property or other property (excluding drilling rigs, automotive
equipment, rental equipment or other personal Property which may be taken to
such premises for the purpose of drilling a well or for other similar temporary
uses) and including any and all oil xxxxx, gas xxxxx, injection xxxxx or other
xxxxx, buildings, structures, field separators, liquid extraction plants, plant
compressors, pumps, pumping units, sales and flow lines, gathering systems,
field gathering systems, tanks and tank batteries, fixtures, valves, fittings,
machinery and parts, engines, boilers, steam generation facilities, meters,
apparatus, equipment, appliances, tools, implements, cables, wires, towers,
casing, tubing and rods, surface leases, rights-of-way, easements and servitudes
licenses and other surface and subsurface rights, together with all additions,
substitutions, replacements, accessions and attachments to any and all of the
foregoing.
-15-
"Oil and Gas Business" means the business of exploiting, exploring
for, developing, acquiring, operating, producing, processing, gathering,
marketing, storing, selling, hedging, treating, swapping, refining 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 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,
royalty trust agreements, incentive compensation programs for geologists,
geophysicists and other providers of technical services to the Company or a
Restricted Subsidiary, master limited partnership agreements, farm-out
agreements, farm-in agreements, division orders, contracts for the sale,
purchase, exchange, transportation, gathering or processing of oil, gas or other
hydrocarbons, unitizations and pooling designations, declarations, orders and
agreements, development agreements, operating agreements, production sales
contracts, area of mutual interest agreements, gas balancing or deferred
production agreements, injection, repressuring and recycling agreements, salt
water or other disposal agreements, seismic or geophysical permits or
agreements, and other agreements which are customary in the Oil and Gas
Business; provided, however, in all instances that such Liens are limited to the
assets that are the subject of the relevant agreement, program, order or
contract; and (iv) Liens on pipelines or pipeline facilities that arise by
operation of law.
"Oil and Gas Properties" means any and all rights, titles, interests
and estates in and to oil and gas leases, oil, gas and mineral leases, or other
liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty
and royalty interests, net profit interests and production payment interests,
including any reserved or residual interests of whatever nature, together with
all fixtures and improvements pertaining thereto
"Opinion of Counsel" means a written opinion of counsel.
"Other Collateral" has the meaning set forth in Section 4.25.
"Other Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Paying Agent" has the meaning set forth in Section 2.03.
"Permitted Business" means any business that is the same as or
similar, reasonably related, complementary or incidental to the business in
which the Company and its Restricted Subsidiaries are engaged on the Issue Date.
"Permitted Indebtedness" means, without duplication, each of the
following:
(1) Indebtedness under the Notes issued in the Offering or in the
Exchange Offer in an aggregate outstanding principal amount not to exceed
$300.0 million and the related Guarantees;
-16-
(2) Indebtedness incurred pursuant to the Credit Agreement (i)
pursuant to credit extensions for general corporate purposes in an
aggregate principal amount at any time outstanding not to exceed $20.0
million (the "Permitted Amount") and (ii) in connection with the
collateralization of Hedging Obligations (including, without limitation,
borrowing funds that are used to provide cash or cash equivalents pledged
to secure Hedging Obligations or to obtaining letters of credit that are
used to provide support for Hedging Obligations) in an aggregate principal
amount at any time outstanding not to exceed $20.0 million, less the sum
of (a) the aggregate principal amount of repayments and prepayments of any
term loans or advances thereunder and (b) the aggregate amount of
reductions to the revolving commitments thereunder, in each case,
contemplated by clause (3)(a) under the caption "--Limitation on Asset
Sales;" provided, however, that if the Company's Reserve Report as of
December 31, 2007 shows total proved reserves of the Company and its
Restricted Subsidiaries ("TPR") in an amount greater than 141.8 Bcfe
("2007 TPR") then the Permitted Amount shall be increased by an additional
amount equal to the product of (A) $1.0 million and (B) the aggregate
amount of Bcfe by which 2007 TPR exceeded 141.8 Bcfe; provided, further,
however, that if the Company's Reserve Report as of any six-month
anniversary of December 31, 2007 (each such date, a "Test Date") shows TPR
(the amount of such TPR, the "Current TPR Amount") in an amount greater
than (i) the TPR shown in the Company's Reserve Report most recently
prepared as of a date at least six months prior to such Test Date (the
amount of such TPR, the "Prior TPR Amount"), (ii) the TPR shown in each of
the Company's Reserve Reports as of any date prior to the Test Date and
subsequent to the Issue Date and (iii) 141.8 Bcfe, then the Permitted
Amount shall be increased by an additional amount equal to the product of
(A) $1.0 million and (B) the aggregate amount of Bcfe by which the Current
TPR Amount exceeded the Prior TPR Amount; provided further, that the
aggregate principal amount of the Permitted Amount shall not exceed $50.0
million after giving effect to all increases permitted by this clause
(2);;
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(4) Hedging Obligations of the Company or any of its Restricted
Subsidiaries;
(5) Intercompany Indebtedness of the Company or a Guarantor for so
long as such Indebtedness is held by the Company or a Guarantor; provided
that if as of any date any Person other than the Company or a Guarantor
owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness (other than Permitted Liens of the type described in clause
(11), (15) or (18) of the definition thereof that secure First Priority
Claims that are permitted under this Indenture or a Permitted Lien of the
type described in clause (14) of the definition thereof), such date shall
be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness under this clause (5) by the issuer of such Indebtedness;
(6) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within three business days after
the Company obtains knowledge thereof;
(7) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in
connection with self-insurance bonds and completion guarantees described
in the following clause in the ordinary course of business;
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(8) obligations in respect of plugging and abandonment, performance,
bid and surety bonds and completion guarantees provided by the Company or
any Restricted Subsidiary in the ordinary course of business;
(9) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business (including Refinancings
thereof that do not result in an increase in the aggregate principal
amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under the
terms of the instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company in connection with such
Refinancing)) not to exceed $10.0 million at any time outstanding;
(10) Refinancing Indebtedness;
(11) Indebtedness represented by guarantees by the Company or a
Restricted Subsidiary of Indebtedness incurred by the Company or a
Restricted Subsidiary so long as the incurrence of such Indebtedness by
the Company or any such Restricted Subsidiary is otherwise permitted by
the terms of this Indenture;
(12) Indebtedness arising from agreements of the Company or a
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred in connection with the
disposition of any business, assets or Subsidiary, other than guarantees
of Indebtedness incurred by any Person acquiring all or any portion of
such business, assets or Subsidiary for the purpose of financing such
acquisition; provided that the maximum aggregate liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually
received by the Company and the Subsidiary in connection with such
disposition;
(13) Indebtedness of the Company or any of its Restricted
Subsidiaries to the extent the net proceeds thereof are promptly used to
redeem the Notes in full or deposited to defease or discharge the Notes,
in each case, in accordance with this Indenture;
(14) Indebtedness solely represented by premium financing or similar
payment obligations incurred with respect to insurance policies purchased
in the ordinary course of business and consistent with past practices; and
(15) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $5.0 million
at any time outstanding.
For purposes of determining compliance with Section 4.12, (a) the
outstanding principal amount of any item of Indebtedness shall be counted only
once and (b) in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness described in clauses
(1) through (15) above or is entitled to be incurred pursuant to the
Consolidated Fixed Charge Coverage Ratio provisions of such covenant, the
Company shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with this covenant. Indebtedness of
the type described in clause (2) above that is outstanding on the Issue Date
will initially be deemed to have been incurred on such date in reliance on the
exception provided by such clause (and for the avoidance of doubt, not clause
(3) above). Accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.12.
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"Permitted Investments" means:
(1) Investments by the Company or any Restricted Subsidiary of the
Company in any Person that is or will become immediately after such
Investment a Guarantor or that will merge or consolidate with or into the
Company or a Guarantor, or that transfers or conveys all or substantially
all of its assets to the Company or a Guarantor;
(2) Investments in the Company by any Restricted Subsidiary of the
Company; provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the
Company's Obligations under the Notes and this Indenture;
(3) Investments in cash and Cash Equivalents;
(4) Hedging Obligations in compliance with Section 4.12;
(5) Investments in the Notes;
(6) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers in
exchange for claims against such trade creditors or customers;
(7) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale
made in compliance with Section 4.16;
(8) Investments in existence on the Issue Date;
(9) loans and advances, including advances for travel and moving
expenses, to employees, officers and directors of the Company and its
Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes not in excess of $1.0 million at any one time
outstanding;
(10) advances to suppliers and customers in the ordinary course of
business; and
(11) additional Investments in an aggregate amount not to exceed
$5.0 million at any time outstanding.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law or pursuant to customary reservations or retentions of
title incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;
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(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(4) any judgment Lien not giving rise to an Event of Default;
(5) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(6) any interest or title of a lessor under any Capitalized Lease
Obligation permitted pursuant to clause (9) of the definition of
"Permitted Indebtedness;" provided that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(7) Liens securing Purchase Money Indebtedness permitted pursuant to
clause (9) of the definition of "Permitted Indebtedness"; provided,
however, that (a) the Indebtedness shall not exceed the cost of the
property or assets acquired, together, in the case of real property, with
the cost of the construction thereof and improvements thereto, and shall
not be secured by a Lien on any property or assets of the Company or any
Restricted Subsidiary of the Company other than such property or assets so
acquired or constructed and improvements thereto and (b) the Lien securing
such Indebtedness shall be created within 180 days of such acquisition or
construction or, in the case of a refinancing of any Purchase Money
Indebtedness, within 180 days of such refinancing;
(8) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(11) Liens securing Indebtedness under Hedging Obligations that are
permitted under this Indenture or that relate to Indebtedness that is
otherwise permitted under this Indenture;
(12) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided that:
(a) such Liens secured such Acquired Indebtedness at the time
of and prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company and were not
granted in connection with, or in anticipation of, the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary
of the Company; and
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(b) such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other
than the property or assets that secured the Acquired Indebtedness
prior to the time such Indebtedness became Acquired Indebtedness of
the Company or a Restricted Subsidiary of the Company and are no
more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary of the Company;
(13) Liens existing as of the Issue Date and securing Indebtedness
permitted to be outstanding under clause (3) of the definition of the term
"Permitted Indebtedness" to the extent and in the manner such Liens are in
effect on the Issue Date;
(14) Liens securing the Notes and all other Obligations under this
Indenture, the Collateral Agreements and the Guarantees;
(15) Liens securing Indebtedness under the Credit Agreement to the
extent such Indebtedness is permitted under clause (2) or (15) of the
definition of the term "Permitted Indebtedness";
(16) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted
under this paragraph and which has been incurred in accordance with
Section 4.12; provided, however, that such Liens: (i) are no less
favorable to the Holders and are not more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced; and (ii) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing
the Indebtedness so Refinanced;
(17) Oil and Gas Liens, in each case which are not incurred in
connection with the borrowing of money; and
(18) Liens securing First Priority Cash Management Obligations.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning set forth in Section 2.14(b).
"Premises" has the meaning set forth in Section 4.22.
"principal" of any Indebtedness (including the Notes) means the
principal amount (or accreted value, as the case may be) of such Indebtedness
plus the premium, if any, on such Indebtedness.
"Private Placement Legend" means the legend initially set forth on
the Notes in the form set forth in Exhibit C.
"Purchase Money Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries incurred for the purpose of financing all or any
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part of the purchase price, or the cost of installation, construction or
improvement, of property or equipment, provided that the aggregate principal
amount of such Indebtedness does not exceed the lesser of the Fair Market Value
of such property or such purchase price or cost.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Record Date" means any of the Record Dates specified in the Notes,
whether or not a Legal Holiday.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for redemption of such Note pursuant to this Indenture
and the Notes.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price fixed for redemption pursuant to this Indenture and the
Notes.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary of the Company of Indebtedness incurred in accordance
with Section 4.12 (other than pursuant to Permitted Indebtedness) or clause (1),
(3) or (10) of the definition of Permitted Indebtedness, in each case that does
not:
(1) have an aggregate principal amount (or, if such Indebtedness is
issued with original issue discount, an aggregate offering price) greater
than the sum of (x) the aggregate principal amount of the Indebtedness
being Refinanced (or, if such Indebtedness being Refinanced is issued with
original issue discount, the aggregate accreted value) as of the date of
such proposed Refinancing plus (y) the amount of fees, expenses, premium,
defeasance costs and accrued but unpaid interest relating to the
Refinancing of such Indebtedness being Refinanced;
(2) create Indebtedness with: (a) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced; or (b) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; or
(3) affect the security, if any, for such Refinancing Indebtedness
(except to the extent that less security is granted to holders of such
Refinancing Indebtedness).
If such Indebtedness being Refinanced is subordinate or junior by
its terms to the Notes, then such Refinancing Indebtedness shall be subordinate
by its terms to the Notes at least to the same extent and in the same manner as
the Indebtedness being Refinanced.
"Registrar" has the meaning set forth in Section 2.03.
"Registration Rights Agreement" means (a) the Registration Rights
Agreement, dated as of the Issue Date, between the Company, the Guarantors and
the Initial Purchaser, as the same may be amended or modified from time to time
in accordance with the terms thereof and (b) any registration rights agreement
between the Company, the Guarantors and the other parties thereto in connection
with the issuance of Additional Notes.
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"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" has the meaning set forth in Section
2.01.
"Reserve Report" means the report relating to the estimates of the
Company's proved reserves prepared by independent petroleum engineers.
"Restricted Payment" has the meaning set forth in Section 4.10.
"Restricted Period" means the 40-day distribution compliance period
as defined in Regulation S.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Secured Parties" means the Collateral Agent, the Trustee and the
Holders.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Security Agreement" means the Security Agreement, dated as of the
Issue Date, made by the Company and the Guarantors in favor of the Collateral
Agent, as amended or supplemented from time to time in accordance with its
terms.
"Significant Subsidiary" with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the
Exchange Act.
"Subsidiary" with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned,
directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise set forth in Section 9.03.
"Transaction Date" means with respect to the incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries that is a
Guarantor, the date such Indebtedness is to be incurred and, with respect to any
Restricted Payment, the date such Restricted Payment is to be made.
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"Trust Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" of any Person means:
(1) any Subsidiary of such Person that at the time of determination
shall be or continue to be designated an Unrestricted Subsidiary by the
Board of Directors of such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated, provided that:
(1) the Company certifies to the Trustee that such designation
complies with Section 4.10; and
(2) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant to which the lender has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if:
(1) immediately after giving effect to such designation, the Company
is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12; and
(2) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing.
Any such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. Government Obligations" means non-callable direct obligations
of, and non-callable obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
which, as at the time of payment, shall be immediately available legal tender
for the payment of public and private debts.
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"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock of such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors (or equivalent governing body) of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (1) the then
outstanding aggregate principal amount of such Indebtedness into (2) the sum of
the total of the products obtained by multiplying:
(a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment
at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth)
which will elapse between such date and the making of such payment.
"Wholly-Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding Capital Stock
(other than in the case of a CFC Subsidiary, directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly-Owned Restricted
Subsidiary of such Person.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in, and made a part of, this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on this Indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
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(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(6) when the words "includes" or "including" are used herein, they
shall be deemed to be followed by the words "without limitation";
(7) all references to "interest" in this Indenture in respect of any
Note shall include any Additional Interest due on such Note pursuant to
the terms of the applicable Registration Rights Agreement; and
(8) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
The Notes
Section 2.01. Form and Dating. The Initial Notes and the Additional
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A hereto. The Exchange Notes and the
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit B hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or Depository rule or usage. The Company
shall approve the form of the Notes and any notation, legend or endorsement on
them. Each Note shall be dated the date of its authentication.
The terms and provisions contained in the forms of the Notes annexed
hereto as Exhibit A and Exhibit B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent Global Notes in registered form,
substantially in the form set forth in Exhibit A hereto ("Global Notes"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and shall
bear the legend set forth in Exhibit C.
Notes offered and sold to Institutional Accredited Investors in
reliance on Rule 501(a)(1), (2), (3) or (7) under the Securities Act shall be
issued initially in the form of one or more permanent Global Notes in registered
form, substantially in the form set forth in Exhibit A (the "IAI Global Notes"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and shall
bear the legend set forth in Exhibit C.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of one or more permanent Global Notes
(a "Regulation S Global Note") deposited with the Trustee, as custodian for the
Depository, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Exhibit C.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
-26-
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Global
Note that are held by participants through Euroclear or Clearsteam.
The aggregate principal amount of any Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
The definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the Officers executing such Notes, as
evidenced by their execution of such Notes.
Section 2.02. Execution and Authentication; Aggregate Principal
Amount. An Officer (who shall have been duly authorized by all requisite
corporate actions) shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office or position at the time
the Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence, and the only evidence, that the Note has
been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in the aggregate principal amount not to exceed $300,000,000 (ii) Exchange Notes
from time to time for issue only pursuant to the Registration Rights Agreement
in exchange for a like principal amount of Initial Notes or Additional Notes,
and (iii) subject to compliance with Section 4.12, one or more series of
Additional Notes for original issue after the Issue Date, in each case upon
written orders of the Company in the form of an Officers' Certificate, which
Officers' Certificate shall, in the case of any issuance of Additional Notes,
certify that such issuance is in compliance with Section 4.12. In addition, each
Officers' Certificate shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated, whether the Notes are to be
Initial Notes, Exchange Notes or Additional Notes. All Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes shall have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 in principal amount and any integral
multiple thereof.
Section 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency which shall initially be the office of the Trustee in the
Borough of Manhattan, The City of New York, where (a) Notes may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
Notes may be presented or surrendered for payment (the "Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Notes and this
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Indenture may be served. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company, upon prior written notice to the
Trustee, may have one or more co-Registrars and one or more additional Paying
Agents reasonably acceptable to the Trustee. The term "Paying Agent" includes
any additional Paying Agent. Neither the Company nor any Affiliate of the
Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee in writing, in advance, of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such, as shall be entitled to appropriate compensation therefore,
pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of demands and notices in connection with the Notes.
The Paying Agent or Registrar may resign upon thirty (30) days' written notice
to the Company.
The Company appoints The Depositary Trust Company as Depositary.
Section 2.04. Obligations of Paying Agent. The Company shall require
each Paying Agent other than the Trustee to agree in writing that such Paying
Agent shall hold separate and apart from, and not commingle with any other
properties, for the benefit of the Holders or the Trustee, all assets held by
the Paying Agent for the payment of principal of, or interest on, the Notes
(whether such assets have been distributed to it by the Company or any other
obligor on the Notes), and the Paying Agent shall promptly notify the Trustee in
writing of any Default by the Company (or any other obligor on the Notes) in
making any such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon receipt by the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
Section 2.05. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of the Holders and shall otherwise comply with TIA Section
312(b). If the Trustee is not the Registrar, the Company shall furnish or cause
the Registrar to furnish to the Trustee before each Record Date and at such
other times as the Trustee may request in writing a list as of such date and in
such form as the Trustee may reasonably request of the names and addresses of
the Holders, which list may be conclusively relied upon by the Trustee.
Section 2.06. Transfer and Exchange. Subject to the provisions of
Sections 2.14 and 2.15, when Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested; provided, however, that the Notes presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing and such other documents as the
Registrar or Co-Registrar may reasonably require. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Company or the Trustee may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.10, 3.07, 4.15, 4.16 or 9.05, in
which event the Company shall be responsible for the payment of such taxes).
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Xxx Xxxxxxxxx or co-Registrar shall not be required to register the
transfer or exchange of any Note (i) during a period beginning at the opening of
business fifteen (15) days before the mailing of a notice of redemption of Notes
and ending at the close of business on the day of such mailing and (ii) selected
for redemption in whole or in part pursuant to Article Three, except the
unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through the Depository, in accordance with this Indenture and the
Applicable Procedures.
Section 2.07. Replacement Notes. If a mutilated Note is surrendered
to the Trustee or if the Holder of a Note claims in writing that the Note has
been lost, destroyed or wrongfully taken, then, in the absence of written notice
to the Company or the Trustee that such Note has been acquired by a protected
purchaser, the Company shall issue and the Trustee shall authenticate a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding if the Trustee's requirements are met. Except with
respect to mutilated Notes, if required by the Trustee or the Company, such
Holder must provide an affidavit of lost certificate and an indemnity bond or
other indemnity, sufficient in the judgment of both the Company and the Trustee,
to protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Note, including reasonable fees
and expenses of its counsel and of the Trustee and its counsel. In case any
mutilated, lost, destroyed or wrongfully taken Note has become or is about to
become due and payable, the Company in its discretion may pay such Note instead
of issuing a new Note in replacement thereof. Every replacement Note shall
constitute an additional obligation of the Company, entitled to the benefits of
this Indenture, subject to Section 2.08.
Section 2.08. Outstanding Notes. Notes outstanding at any time are
all the Notes that have been authenticated by the Trustee except those cancelled
by it, those delivered to it for cancellation and those described in this
Section 2.08 as not outstanding. Subject to the provisions of Section 2.09, a
Note does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a protected purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Section 2.09. Treasury Notes; When Notes Are Disregarded. In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver, consent or notice, Notes owned by the
Company or any of its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
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Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. Notes 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 Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
Section 2.10. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Notes upon receipt of a written order of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
temporary Notes to be authenticated and the date on which the temporary Notes
are to be authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Notes in exchange for temporary Notes. Until
so exchanged, the temporary Notes shall be entitled to the same benefits under
this Indenture as definitive Notes.
Section 2.11. Cancellation. The Company at any time may deliver
Notes previously authenticated hereunder which the Company has acquired in any
lawful manner, to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for transfer,
exchange or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent, and no one else, shall cancel all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11. The
Trustee shall dispose of all cancelled Notes in accordance with the Trustee's
customary procedures.
Section 2.12. CUSIP Numbers. A "CUSIP" number shall be printed on
the Notes, and the Trustee shall use the CUSIP number in notices of redemption,
purchase or exchange as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
Section 2.13. Deposit of Moneys. Prior to 10:00 a.m. New York City
time on each Interest Payment Date and the Maturity Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to make cash
payments, if any, due on such Interest Payment Date or the Maturity Date, as the
case may be.
Section 2.14. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under any
Global Note, 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 the Global Note
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 impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
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(b) Transfers of the Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged in accordance with the Applicable Procedures of the Depository and
the provisions of Section 2.15, provided, however, that prior to the expiration
of the Restricted Period, transfers of beneficial interests in the Regulation S
Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). In addition, Notes in the form of
certificated Notes in registered form in substantially the form set forth in
Exhibit A hereto (the "Physical Notes") shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Global Notes if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository is not appointed by
the Company within ninety (90) days of such notice or (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Notes; provided that a beneficial interest in the
Regulation S Global Note may not be exchanged for a Physical Note or transferred
to a Person who takes delivery thereof in the form of a Physical Note prior to
the expiration of the Restricted Period.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such first Global
Note and become a beneficial interest in such other Global Note and,
accordingly, shall thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to a beneficial interest in such other Global
Notes for as long as it remains such an interest.
(d) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and aggregate principal amount.
(e) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(f) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in the Global Note pursuant to paragraph (b), except
as otherwise provided by paragraphs (a)(i)(x) and (c) of Section 2.15, bear the
legend regarding transfer restrictions applicable to the Physical Notes set
forth in Exhibit A.
(g) The Holder of a Global Note 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 Notes.
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Section 2.15. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after May [15],
[2008] or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit E hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Applicable Procedures and the
Registrar's procedures,
whereupon (1) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (2) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and principal
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note 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 QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Applicable Procedures and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
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(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstance contemplated by paragraph (a)(i)(x) of this Section
2.15 exists or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act. The
Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture. In connection with any transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
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 Agent Members or
beneficial owners of interest in any Global Note) 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.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE THREE
Redemption
Section 3.01. Optional Redemption.
(a) The Company may, at its option, redeem the Notes, in whole or in
part, at specified times and under specified conditions, as set forth in this
Section 3.01. If the Company elects to redeem Notes pursuant to this Section
3.01, it shall, prior to mailing the notice of redemption referred to in Section
3.04 and at least 45 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee) furnish to the Trustee and Paying Agent an
Officers' Certificate setting forth the Redemption Date and the principal amount
of the Notes to be redeemed, the clause of this Indenture pursuant to which the
redemption shall occur and the Redemption Price.
(b) Optional Redemption on or After June 1, 2010. The Notes are not
redeemable before June 1, 2010. Thereafter, the Company may redeem the Notes, at
its option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at a redemption price at the redemption prices (expressed as percentages
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of principal amount) set forth below plus accrued and unpaid interest to (but
not including) the redemption date, if redeemed during the twelve-month period
beginning on June 1 of the years set forth below:
Year Percentage
---- ----------
2010....................................................... 105.250%
2011 and thereafter........................................ 100.000%
In addition, the Company must pay accrued and unpaid interest and
Additional Interest, if any, on the Notes redeemed to the Redemption Date.
(c)......Optional Redemption Upon Equity Offerings. At any time, or
from time to time, prior to June 1, 2010, the Company may, at its option, use an
amount not to exceed the net cash proceeds of one or more Equity Offerings to
redeem up to 35% of the aggregate principal amount of the Notes (which includes
Additional Notes, if any) originally issued under this Indenture at a redemption
price of 110.500% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, to the Redemption Date; provided that:
(1) at least 65% of the principal amount of Notes (which includes
Additional Notes, if any) originally issued under this Indenture remains
outstanding immediately after any such redemption; and
(2) the Company makes such redemption not more than 120 days after
the consummation of any such Equity Offering.
Section 3.02. Mandatory Redemption. The Company is not required to
make any mandatory redemption or sinking fund payments with respect to the
Notes.
Section 3.03. Selection of Notes to Be Redeemed. If fewer than all
of the Notes are to be redeemed pursuant to the provisions of this Indenture,
the Trustee shall select the Notes to be redeemed (1) in compliance with the
requirements of the principal national securities exchange, if any, on which
such Notes are listed or (2) if such Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or by such method as the
Trustee may reasonably determine is fair and appropriate, provided that if any
such partial redemption is made with the proceeds of an Equity Offering, the
Trustee will select the Notes only on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to DTC procedures), unless such method is
otherwise prohibited. The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof, to be
redeemed.
No Notes of a principal amount of $1,000 or less shall be redeemed
in part and Notes of a principal amount in excess of $1,000 may be redeemed in
part in multiples of $1,000 only. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Notes that have denominations larger than $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
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Section 3.04. Notice of Redemption. At least 30 days but not more
than 60 days before the Redemption Date, the Company shall mail or cause to be
mailed a notice of redemption by first class mail, postage prepaid, to each
Holder whose Notes are to be redeemed at its registered address, with a copy to
the Trustee and any Paying Agent. At the Company's written request delivered at
least fifteen days prior to the date such notice is to be given (unless a
shorter period shall be acceptable to the Trustee), the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense,
provided the Company provides the Trustee with all information required for such
notice of redemption. Failure to give Notice of redemption, or any defect
therein to any Holder of any Note selected for redemption shall not impair or
affect the validity of the redemption of any other Note.
Each notice of redemption shall identify the Notes to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) the CUSIP number;
(5) the subparagraph of the Notes pursuant to which such redemption
is being made;
(6) the place where such Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price plus
accrued interest, if any;
(7) that, unless the Company fails to deposit with the Paying Agent
funds in satisfaction of the applicable Redemption Price plus accrued
interest, if any, the Notes cease to accrete in value and interest on
Notes called for redemption ceases to accrue on and after the Redemption
Date in accordance with Section 3.06, and the only remaining right of the
Holders of such Notes is to receive payment of the Redemption Price plus
accrued interest, if any, upon surrender to the Paying Agent of the Notes
redeemed;
(8) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
shall be issued in the name of the Holder thereof upon cancellation of the
original Note (or appropriate adjustments to the amount and beneficial
interests in the Global Note will be made); and
(9) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
If any of the Notes to be redeemed is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depository applicable to redemption.
Section 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.04, Notes or portions thereof
called for redemption shall become irrevocably due and payable on the Redemption
Date and at the Redemption Price plus accrued interest thereon. Upon surrender
to the Trustee or Paying Agent, such Notes or portions thereof called for
redemption shall be paid at the Redemption Price plus accrued interest thereon,
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to the Redemption Date, but installments of interest thereon, the maturity of
which is on or prior to the Redemption Date, shall be payable to Holders of
record at the close of business on the relevant Record Dates referred to in the
Notes.
Section 3.06. Deposit of Redemption Price. Not later than 10:00 a.m.
local time in the place of payment on the Redemption Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption
Price plus accrued interest, if any, of all Notes or portions thereof to be
redeemed on that date.
The Paying Agent shall promptly return to the Company any U.S. Legal
Tender so deposited which is not required for that purpose, except with respect
to monies owed as obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the Notes to be redeemed shall cease to accrue and
the Notes shall cease to accrete in value on and after the applicable Redemption
Date, whether or not such Notes are presented for payment.
Section 3.07. Notes Redeemed in Part. Upon surrender of a Note that
is to be redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder at the expense of the Company a new Note or Notes
equal in principal amount to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
Covenants
Section 4.01. Payment of Notes. The Company shall pay the principal
of, or premium, if any, and interest, if any, on the Notes on the dates and in
the manner provided in the Notes and in this Indenture. An installment of
principal of, or premium, if any, or interest, if any, on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or an Affiliate of the Company) holds at 10:00 a.m. (New York time)
on that date U.S. Legal Tender designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture. The Company shall pay interest on
overdue principal at 1% per annum in excess of the rate per annum set forth in
the Notes, and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States from
principal or interest payments hereunder.
Section 4.02. Maintenance of Office or Agency. The Company shall
maintain the office or agency required under Section 2.03. The Company shall
give prior written notice to the Trustee and the Holders of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Section 4.03. Corporate Existence. Except as otherwise permitted by
Articles Four, Five, and Ten the Company shall do or cause to be done, at its
own cost and expense, all things necessary to preserve and keep in full force
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and effect its corporate existence and the limited liability company,
partnership or corporate existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of the Company and each
such Restricted Subsidiary, as the case may be, and the material rights (charter
and statutory) and franchises of the Company and each such Restricted
Subsidiary; provided, however, that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Restricted Subsidiaries, any such existence, material
right or franchise, if the Board of Directors of the Company, shall determine in
good faith that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries, taken as a
whole.
Section 4.04. Payment of Taxes and Other Claims. The Company shall
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon it or any of its Restricted Subsidiaries or its
properties or any of its Restricted Subsidiaries' properties and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon its properties or any of its Restricted Subsidiaries'
properties; 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 or shall be contested in
good faith by appropriate proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required under GAAP, have
been taken.
Section 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its properties in good working order and condition in
all material respects (subject to ordinary wear and tear) and make all necessary
repairs, renewals, replacements, additions, betterments and improvements thereto
and actively conduct and carry on its business; provided, however, that nothing
in this Section 4.05 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the good faith judgment of the Board of
Directors or other governing body of the Company or the Subsidiary concerned, as
the case may be, desirable in the conduct of its businesses and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall maintain insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Company, are adequate and appropriate for the conduct of the
business of the Company and its Restricted Subsidiaries in a prudent manner,
with reputable insurers or with the government of the United States or an agency
or instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the good faith judgment of the Company, for
companies similarly situated in the industry in which the Company and its
Restricted Subsidiaries are engaged.
Section 4.06. Compliance Certificate; Notice of Default.
(a) The Company and each Guarantor shall deliver to the Trustee,
within ninety (90) days after the end of the Company's fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Restricted Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers (one of whom is the principal executive
officer, principal financial officer or principal accounting officer) with a
view to determining whether they have kept, observed, performed and fulfilled
their obligations under this Indenture and further stating, as to each such
Officer signing such certificate, that to the best of such Officer's actual
knowledge the Company and its Restricted Subsidiaries during such preceding
fiscal year have kept, observed, performed and fulfilled each and every
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condition and covenant under this Indenture and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section
4.08 shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions hereof insofar as they relate to accounting matters or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.02, by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five (5) Business Days of
its becoming aware of such occurrence.
Section 4.07. Compliance with Laws. The Company shall, and shall
cause each of its Restricted Subsidiaries to, comply with all applicable
statutes, rules, regulations, orders and restrictions of the United States, all
states and municipalities thereof, and of any governmental department,
commission, board, regulatory authority, bureau, agency and instrumentality of
the foregoing, in respect of the conduct of its businesses and the ownership of
its properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole or the ability of the Company to perform its obligations hereunder.
Section 4.08. Reports to Holders. Whether or not required by the
rules and regulations of the Commission, so long as any Notes are outstanding,
the Company will furnish to the Trustee and, upon request, to the Holders:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in
the footnotes thereto and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, the financial condition and
results of operations of the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company, if any) and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports,
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in each case within the time periods specified in the Commission's rules and
regulations, provided that any breach of this Section 4.08 shall be cured upon
the furnishing of such late report within 20 days of the date on which such
report was required to be furnished.
Notwithstanding the foregoing, the Company may satisfy such
requirements prior to the effectiveness of the registration statement
contemplated by the Registration Rights Agreement by filing with the Commission
such registration statement within the time period required for such filing as
specified in the Registration Rights Agreement, to the extent that any such
registration statement contains substantially the same information as would be
required to be filed by the Company if it were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, and by providing the
Trustee and Holders with such Registration Statement (and any amendments
thereto) promptly following the filing thereof.
In addition, following the consummation of the Exchange Offer,
whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information and reports with the Commission
for public availability within the time periods specified in the Commission's
rules and regulations (unless the Commission will not accept such a filing). In
addition, the Company has agreed that, prior to the consummation of the Exchange
Offer, for so long as any Notes remain outstanding, it will furnish to the
Holders upon their request, the information required to be delivered pursuant to
Rule 144(A)(d)(4) under the Securities Act.
The receipt by the Trustee of any such reports and documents
pursuant to this Section 4.08 shall not constitute notice or constructive notice
of any information contained in such documents or determinable from information
contained in such documents, including the Company's compliance with any
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
an Officers' Certificate).
Section 4.09. Waiver of Stay, Extension or Usury Laws. The Company
and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company and each of
the Guarantors from paying all or any portion of the principal of, premium, if
any, or interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company and each of the Guarantors hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 4.10. Limitation on Restricted Payments. The Company will
not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly:
(a) declare or pay any dividend or make any distribution (other than
dividends or distributions payable in Qualified Capital Stock of the
Company and dividends and distributions payable to the Company or another
Restricted Subsidiary of the Company) on or in respect of shares of
Capital Stock of the Company or its Restricted Subsidiaries to holders of
such Capital Stock;
(b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or its Restricted Subsidiaries (other than
any such Capital Stock held by the Company or any Restricted Subsidiary);
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(c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company or any Guarantor that is
subordinate or junior in right of payment to the Notes or a Guarantee; or
(d) make any Investment (other than Permitted Investments);
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto:
(i) a Default or an Event of Default shall have occurred and be
continuing;
(ii) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12; or
(iii) the aggregate amount of Restricted Payments (including such
proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the Fair Market
Value of such property at the time of the making thereof) shall exceed the
sum of:
(A) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income is a loss, minus 100% of such
loss) of the Company earned during the period beginning on the first
day of the first fiscal quarter after the Issue Date and ending on
the last day of the Company's most recent fiscal quarter ending
prior to the date the Restricted Payment occurs for which financial
statements are available (the "Reference Date") (treating such
period as a single accounting period); plus
(B) 100% of the aggregate net cash proceeds received by the
Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale subsequent to the Issue Date and on or
prior to the Reference Date of Qualified Capital Stock of the
Company (excluding any net proceeds from an Equity Offering to the
extent used to redeem Notes pursuant to the provisions described in
Section 3.01); plus
(C) without duplication of any amounts included in clause
(iii)(B) above, 100% of the aggregate net cash proceeds of any
equity contribution received by the Company from holders of the
Company's Capital Stock subsequent to the Issue Date and on or prior
to the Reference Date (excluding any net proceeds from an Equity
Offering to the extent used to redeem Notes pursuant to the
provisions described in Section 3.01); plus
(D) 100% of the aggregate net cash proceeds received from the
issuance of Indebtedness or shares of Disqualified Capital Stock of
the Company that have been converted into or exchanged for Qualified
Capital Stock of the Company subsequent to the Issue Date and on or
prior to the Reference Date; plus
(E) an amount equal to the sum of (i) the net reduction in the
Investments (other than Permitted Investments) made by the Company
or any of its Restricted Subsidiaries in any Person resulting from
repurchases, repayments or redemptions of such Investments by such
Person, proceeds realized on the sale of such Investment and
proceeds representing the return of capital (excluding dividends and
distributions otherwise included in Consolidated Net Income), in
each case received by the Company or any of its Restricted
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Subsidiaries, and (ii) to the extent such Person is an Unrestricted
Subsidiary, the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net
assets of such Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided, however,
that the foregoing sum shall not exceed, in the case of any such
Person or Unrestricted Subsidiary, the amount of Investments
(excluding Permitted Investments) previously made (and treated as a
Restricted Payment) by the Company or any of its Restricted
Subsidiaries in such Person or Unrestricted Subsidiary.
In the case of clauses (iii)(B) and (C) above, any net cash proceeds
from issuances and sales of Qualified Capital Stock of the Company financed
directly or indirectly using funds borrowed from the Company or any Subsidiary
of the Company, shall be excluded until and to the extent such borrowing is
repaid.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit:
(1) the payment of any dividend or other distribution or redemption
within 60 days after the date of declaration of such dividend or call for
redemption if such payment would have been permitted on the date of
declaration or call for redemption;
(2) the acquisition of any shares of Qualified Capital Stock of the
Company, either (i) solely in exchange for other shares of Qualified
Capital Stock of the Company or (ii) through the application of net
proceeds of a sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company or a cash capital
contribution received by the Company from holders of the Company's Capital
Stock within 60 days after such exchange, sale or receipt of such cash
capital contribution;
(3) the acquisition of any Indebtedness of the Company or the
Guarantors that is subordinate or junior in right of payment to the Notes
and Guarantees either (i) solely in exchange for shares of Qualified
Capital Stock of the Company, or (ii) through the application of (a) net
proceeds of a sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company or a cash capital
contribution received by the Company from holders of the Company's Capital
Stock within 60 days after such sale or receipt of such cash capital
contribution or (b) if no Default or Event of Default would exist after
giving effect thereto, Refinancing Indebtedness;
(4) an Investment either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of
the net proceeds of a sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company or a cash
capital contribution received by the Company from holders of the Company's
Capital Stock within 60 days after such sale or receipt of such cash
capital contribution;
(5) if no Default or Event of Default has occurred and is continuing
or would exist after giving effect thereto, the repurchase or other
acquisition of shares of Capital Stock of the Company, from employees,
former employees, directors or former directors of the Company or its
Restricted Subsidiaries (or permitted transferees of such employees,
former employees, directors or former directors), pursuant to the terms of
the agreements (including employment agreements) or plans (or amendments
thereto) or other arrangements approved by the Board of Directors of the
Company under which such shares were granted, issued or sold or such other
repurchases or acquisitions as may be approved by the Board of Directors
of the Company; provided, however, that the aggregate
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amount of such repurchases and other acquisitions in any calendar year
shall not exceed $500,000 plus up to $500,000 of any unutilized amounts
from the preceding calendar year; provided, further, however, that such
amount in any calendar year may be increased by an amount not to exceed
the cash proceeds of key man life insurance policies received by the
Company (to the extent contributed to the Company) and its Restricted
Subsidiaries subsequent to the Issue Date;
(6) repurchases of Capital Stock deemed to occur upon exercise of
stock options, warrants or other similar rights if such Capital Stock
represents a portion of the exercise price of such options, warrants or
other similar rights;
(7) payments or distributions to dissenting stockholders of Capital
Stock of the Company pursuant to applicable law, pursuant to or in
connection with a consolidation, merger or transfer of assets that
complies with the provisions of this Indenture applicable to mergers,
consolidations and transfers of all or substantially all of the property
and assets of the Company or any of its Restricted Subsidiaries;
(8) the application of the proceeds from the issuance of the Notes
or the Preferred Stock on or about the Issue Date as described under the
"Use of Proceeds" section of the Offering Circular; and
(9) if no Default or Event of Default shall have occurred and be
continuing or would exist after giving effect thereto, other Restricted
Payments not to exceed $5.0 million in the aggregate since the Issue Date.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) of the first
paragraph of this Section 4.10, amounts expended pursuant to clauses (1),
(2)(ii), (3)(ii)(a) and (4)(ii) shall be included in such calculation.
On the last business day of each fiscal quarter the Company shall
deliver to the Trustee an Officers' Certificate stating that the Restricted
Payments made by the Company during such fiscal quarter complied with this
Indenture and setting forth in reasonable detail the basis upon which the
required calculations were computed, which calculations may be based upon the
Company's latest available internal quarterly financial statements.
Section 4.11. Limitations on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than
(x) Affiliate Transactions permitted under paragraph (b) below, and
(y) Affiliate Transactions on terms that are no less favorable than
those that might reasonably have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a Fair Market Value in excess of $2.5 million
shall be approved by a majority of the members of the Board of Directors of the
Company (including a majority of the disinterested members thereof), as the case
may be, such approval to be evidenced by a Board Resolution stating that such
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Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Company or any Restricted Subsidiary of the Company
enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) that involves an aggregate Fair Market
Value of more than $5.0 million, the Company shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of the financial terms of
such transaction or series of related transactions to the Company or the
relevant Restricted Subsidiary, as the case may be, from an Independent
Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in paragraph (a) of this covenant
shall not apply to:
(1) reasonable fees and compensation paid to and indemnity provided
on behalf of, officers, directors, employees or consultants of the Company
or any Restricted Subsidiary of the Company as determined in good faith by
the Company's Board of Directors or senior management;
(2) transactions exclusively between or among the Company and any of
its Restricted Subsidiaries or exclusively between or among such
Restricted Subsidiaries, provided such transactions are not otherwise
prohibited by this Indenture;
(3) any agreement as in effect as of the Issue Date or any
transaction contemplated thereby and any amendment thereto or any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date;
(4) Restricted Payments permitted by this Indenture and Permitted
Investments of the type described in clauses (9) and (11) of the
definition thereof;
(5) any merger or other transaction with an Affiliate solely for the
purpose of reincorporating or reorganizing the Company in another
jurisdiction or creating a holding company of the Company;
(6) any employment, stock option, stock repurchase, employee benefit
compensation, business expense reimbursement, severance, termination or
other employment-related agreements, arrangements or plans entered into by
the Company or any of its Restricted Subsidiaries in the ordinary course
of business;
(7) transactions to effect the Transactions and the payment of all
fees and expenses related to the Transactions; and
(8) the issuance of Qualified Capital Stock of the Company.
Section 4.12. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of any such Indebtedness, the Company or any of
its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) if on the date of the incurrence of such Indebtedness the
Consolidated Fixed Charge Coverage Ratio of the Company will be, after giving
effect to the incurrence thereof, greater than 2.5 to 1.0.
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(b) The Company will not, and will not permit any of its Domestic
Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness which
by its terms (or by the terms of any agreement governing such Indebtedness) is
subordinated in right of payment to any other Indebtedness of the Company or
such Domestic Restricted Subsidiary unless such Indebtedness is also by its
terms (or by the terms of any agreement governing such Indebtedness) made
expressly subordinate to the Obligations of the Company or such Domestic
Restricted Subsidiary under (i) in the case of the Company, the Notes and this
Indenture or (ii) in the case of such Domestic Restricted Subsidiary, its
Guarantee and this Indenture, in each case, to the same extent and in the same
manner as such Indebtedness is subordinated pursuant to subordination provisions
that are most favorable to the holders of any other Indebtedness of the Company
or such Domestic Restricted Subsidiary.
Section 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not cause or
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or permit to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in respect
of its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or
(3) transfer any of its property or assets to the Company or any
other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by
reason of:
(a) applicable law, rule or regulation;
(b) this Indenture and the Collateral Agreements;
(c) customary non-assignment provisions of any lease of any
Restricted Subsidiary of the Company to the extent such provisions
restrict the transfer of the lease or the property leased thereunder;
(d) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(e) agreements existing on the Issue Date (including the Credit
Agreement) to the extent and in the manner such agreements are in effect
on the Issue Date;
(f) restrictions on the transfer of assets subject to any Lien
permitted under this Indenture;
(g) restrictions imposed by any agreement to sell assets or Capital
Stock permitted under this Indenture to any Person pending the closing of
such sale;
(h) provisions in joint venture agreements and other similar
agreements (in each case relating solely to the respective joint venture
or similar entity or the equity interests therein) entered into in the
ordinary course of business;
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(i) restrictions contained in the terms of the Purchase Money
Indebtedness or Capitalized Lease Obligations not incurred in violation of
this Indenture; provided, that such restrictions relate only to the assets
financed with such Indebtedness;
(j) restrictions in other Indebtedness incurred in compliance with
Section 4.12 (including Permitted Indebtedness); provided that such
restrictions, taken as a whole, are, in the good faith judgment of the
Board of Directors of the Company, no more materially restrictive with
respect to such encumbrances and restrictions than those customary in
comparable financings (as reasonably determined by the Company) and the
Company determines that any such encumbrance or restriction will not
materially affect the Company's ability to make principal, premium, if
any, or interest payments on the Notes or any Guarantor's ability to honor
its Guarantee in respect thereof; or
(k) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred
to in clause (b), (d) or (e) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such
Indebtedness are no less favorable to the Company in any material respect
as determined by the Board of Directors of the Company in their reasonable
and good faith judgment than the provisions relating to such encumbrance
or restriction contained in agreements referred to in such clause (b), (d)
or (e).
Section 4.14. Additional Guarantees. If the Company or any of its
Restricted Subsidiaries acquires or creates another Domestic Restricted
Subsidiary after the Issue Date (other than an Unrestricted Subsidiary), then
the Company shall cause such Domestic Restricted Subsidiary to:
(1) execute and deliver to the Trustee a supplemental indenture
pursuant to which such Domestic Restricted Subsidiary shall
unconditionally guarantee on a senior secured basis all of the Company's
obligations under the Notes and this Indenture on the terms set forth in
this Indenture;
(2) execute and deliver to the Trustee and the Collateral Agent
amendments to the Collateral Agreements or additional Collateral
Agreements and take such other actions as may be necessary to grant to the
Collateral Agent, for the benefit of the Holders, a perfected Lien in the
assets other than Excluded Collateral of such Domestic Restricted
Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions or such other actions as may be required
by the Collateral Agreements;
(3) take such actions necessary or as the Collateral Agent
reasonably determines to be advisable to grant to the Collateral Agent for
the benefit of the Holders a perfected Lien in the assets other than
Excluded Collateral of such new Domestic Restricted Subsidiary, subject to
the Permitted Liens, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the
Security Agreement or by law or as may be reasonably requested by the
Collateral Agent;
(4) take such further action and execute and deliver such other
documents necessary or as reasonably requested by the Trustee or the
Collateral Agent to effectuate the foregoing; and
(5) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture and any other documents required to be delivered
have been duly authorized, executed and delivered by such Domestic
Restricted Subsidiary and constitute legal, valid, binding and enforceable
obligations of such Domestic Restricted Subsidiary and such other opinions
regarding the perfection of such Liens in the assets of such Domestic
Restricted Subsidiary as provided for in this Indenture.
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Section 4.15. Repurchase upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require the Company to purchase all or a portion (in integral
multiples of $1,000) of such Holder's Notes using immediately available funds
pursuant to the offer described below (the "Change of Control Offer"), at a
purchase price in cash equal to 101% of the principal amount thereof on the date
of purchase, plus accrued and unpaid interest and Additional Interest, if any,
to the date of purchase.
(b) Within 30 days following the date upon which the Change of
Control occurred, the Company shall send, by registered first class mail,
postage prepaid, a notice to each record Holder as shown on the register of
Holders, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn shall be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 60 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered shall continue to accrete in value
and accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrete in value and accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than three (3) 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 Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be
issued new Notes in a principal amount equal to the portion thereof not
purchased will be issued in the name of the Holder thereof upon
cancellation of the original Note (or appropriate adjustments to the
amount and beneficial interests in a Global Note will be made); provided
that each Note purchased and each new Note issued shall be in an original
principal amount of $1,000 or integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
If any of the Notes subject to the Change of Control Offer is in the
form of a Global Note, then the Company shall modify such notice to the extent
necessary to comply with the procedures of the Depositary applicable to
repurchases.
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On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price plus accrued interest, if any, of
all Notes or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so tendered the purchase price for such Notes and the Company
shall promptly issue and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered; provided
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. Any Notes not so accepted shall be promptly mailed by the
Company to the Holders thereof. For purposes of this Section 4.15, the Trustee
shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer will be returned by the Trustee to the Company.
Neither the Board of Directors of the Company nor the Trustee may
waive the Company's obligation to offer to purchase the Notes pursuant to this
Section 4.15.
The Company will comply with the requirements of Rule 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
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.15, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.15 by virtue thereof.
Notwithstanding the above, the Company will not be required to make
a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements of this Section 4.15 and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Notes (or portions thereof) purchased pursuant to a Change of
Control Offer shall be cancelled and may not be reissued.
Section 4.16. Limitation on Asset Sales. The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless:
(1) the Company or the applicable 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 assets sold or otherwise disposed;
(2) at least 75% of the consideration received by the Company or the
Restricted Subsidiary, as the case may be, from such Asset Sale is in the
form of cash or Cash Equivalents or assets described in the following
clause (3)(b) and is received at the time of such disposition; provided
that the amount of any liabilities (as shown on the most recent applicable
balance sheet) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes) that are
assumed by the transferee of any such assets shall be deemed to be cash
for purposes of this provision so long as the documents governing such
liabilities provide that there is no further recourse to the Company or
any of its Subsidiaries with respect to such liabilities; and
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(3) the Company shall apply, or cause such Restricted Subsidiary to
apply, the Net Cash Proceeds relating to such Asset Sale within 360 days
of receipt thereof either:
(a) to repay Indebtedness under the Credit Agreement and
permanently reduce the commitments thereunder;
(b) to make an investment in property, plant, equipment or
other non-current assets that replace the properties and assets that
were the subject of such Asset Sale or that will be used or useful
in a Permitted Business (including expenditures for maintenance,
repair or improvement of existing properties and assets) or the
acquisition of all of the Capital Stock of a Person engaged in a
Permitted Business; or
(c) a combination of repayment and investment permitted by the
foregoing clauses (3)(a) and (3)(b).
Pending the final application of Net Cash Proceeds, the Company may
temporarily reduce revolving credit borrowings or invest such Net Cash Proceeds
in Cash Equivalents. On the 361st day after an Asset Sale or such earlier date,
if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (3)(a), (3)(b) or (3)(c) of the preceding paragraph
(each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding
paragraph (each a "Net Proceeds Offer Amount") shall be applied by the Company
or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds
Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
all Holders, the maximum principal amount of Notes that may be purchased with
the Net Proceeds Offer Amount at a price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any,
thereon to the date of purchase; provided, however, that if at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder on the date of
such conversion or disposition, as the case may be, and the Net Cash Proceeds
thereof shall be applied in accordance with this covenant.
The Company may defer any Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $5.0
million resulting from one or more Asset Sales in which case the accumulation of
such amount shall constitute a Net Proceeds Offer Trigger Date (at which time,
the entire unutilized Net Proceeds Offer Amount, and not just the amount in
excess of $5.0 million, shall be applied as required pursuant to the immediately
preceding paragraph). Upon the completion of each Net Proceeds Offer, the Net
Proceeds Offer Amount will be reset at zero.
In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, which
transaction does not constitute a Change of Control, the successor entity shall
be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this covenant, and
shall comply with the provisions of this covenant with respect to such deemed
sale as if it constituted an Asset Sale. In addition, the Fair Market Value of
such properties and assets of the Company or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.
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Each notice of a Net Proceeds Offer shall be mailed first class,
postage prepaid, to the record Holders as shown on the register of Holders
within 20 days following the Net Proceeds Offer Trigger Date, with a copy to the
Trustee, and shall comply with the procedures set forth in this Indenture. Upon
receiving notice of the Net Proceeds Offer, Holders may elect to tender their
Notes in whole or in part in integral multiples of $1,000 in exchange for cash.
To the extent Holders properly tender Notes in an amount exceeding the Net
Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro
rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open
for a period of 20 business days or such longer period as may be required by
law.
The Company will comply with the requirements of Rule 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
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the "Asset Sale"
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the "Asset Sale" provisions of this Indenture by virtue of
such compliance.
Section 4.17. Limitation on Liens. The Company will not, and will
not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Liens (other
than Permitted Liens) of any kind against or upon any property or assets of the
Company or any of its Restricted Subsidiaries whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom.
Section 4.18. Conduct of Business. The Company will not, and will
not permit any of its Restricted Subsidiaries to, engage in any businesses other
than the Permitted Businesses.
Section 4.19. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries. The Company will not permit or cause any of its Restricted
Subsidiaries to issue or sell, any Capital Stock (other than to the Company or a
Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly-Owned Restricted Subsidiary of the Company) to own
or hold any Capital Stock of any Restricted Subsidiary of the Company (other
than as required by applicable law); provided, however, that this provision
shall not prohibit (1) any issuance or sale if, immediately after giving effect
thereto, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary and any Investment in such Person remaining after giving effect to
such issuance or sale would have been permitted to be made under Section 4.10 if
made on the date of such issuance or sale or (2) the sale of all of the Capital
Stock of a Restricted Subsidiary in compliance with Section 4.16.
Section 4.20. Payments for Consent. The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes, or any of the Collateral Agreements
unless such consideration is offered to be paid or is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.21. Impairment of Security Interest. Subject to the
Intercreditor Agreement, neither the Company nor any of its Restricted
Subsidiaries will take or omit to take any action which would adversely affect
or impair in any material respect the Liens in favor of the Collateral Agent
with respect to the Collateral, except as otherwise permitted or required by the
Collateral Agreements or this Indenture. Neither the Company nor any of its
Restricted Subsidiaries will enter into any agreement that requires the proceeds
received from any sale of Collateral to be applied to repay, redeem, defease or
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otherwise acquire or retire any Indebtedness of any Person, other than the First
Priority Claims, the Notes and the Collateral Agreements. The Company shall, and
shall cause each Guarantor to, at their sole cost and expense, execute and
deliver all such agreements and instruments as the Collateral Agent or the
Trustee shall reasonably request to more fully or accurately describe the
property intended to be Collateral or the obligations intended to be secured by
the Collateral Agreements. The Company shall, and shall cause each Guarantor to,
at their sole cost and expense, file any such notice filings or other agreements
or instruments as may be reasonably necessary or desirable under applicable law
to perfect the Liens created by the Collateral Agreements at such times and at
such places as the Collateral Agent or the Trustee may reasonably request.
Section 4.22. Real Estate Mortgages and Filings. With respect to any
real property other than oil and gas properties and Excluded Collateral
(individually and collectively, the "Premises") owned by the Company or a
Domestic Restricted Subsidiary on the Issue Date with a Fair Market Value of
greater than $500,000 and with respect to any such property to be acquired by
the Company or a Domestic Subsidiary after the Issue Date with a purchase price
of greater than $500,000 (within 90 days of the acquisition thereof):
(1) the Company shall deliver to the Collateral Agent, as mortgagee,
fully executed counterparts of Mortgages, duly executed by the Company or
the applicable Domestic Restricted Subsidiary, together with evidence of
the completion (or satisfactory arrangements for the completion), of all
recordings and filings of such Mortgage as may be necessary to create a
valid, perfected Lien, subject to Permitted Liens, against the properties
purported to be covered thereby;
(2) the Company shall deliver to the Collateral Agent mortgagee's
title insurance policies in favor of the Collateral Agent, as mortgagee
for the ratable benefit of the Collateral Agent, the Trustee and the
Holders in an amount equal to 100% of the Fair Market Value of the
Premises purported to be covered by the related Mortgage, insuring that
title to such property is marketable and that the interests created by the
Mortgage constitute valid Liens thereon free and clear of all Liens,
defects and encumbrances other than Permitted Liens together with such
necessary endorsements, coinsurance and reinsurance;
(3) the Company shall deliver to the Collateral Agent, with respect
to each of the covered Premises, the most recent survey of such Premises,
together with either (i) an updated survey certification in favor of the
Trustee and the Collateral Agent from the applicable surveyor stating
that, based on a visual inspection of the property and the knowledge of
the surveyor, there has been no change in the facts depicted in the survey
or (ii) an affidavit from the Company and the Guarantors stating that
there has been no change, sufficient for the title insurance company to
remove all standard survey exceptions and issue the endorsements
reasonably required by the Collateral Agent; and
(4) the Company shall deliver to the Collateral Agent an opinion
from local counsel in each state where a Premises is located in covering
the enforceability of the relevant Mortgages.
Section 4.23. Oil and Gas Mortgages and Filings. With respect to any
Oil and Gas Assets owned by the Company or a Domestic Restricted Subsidiary on
the Issue Date or acquired by the Company or a Domestic Subsidiary after the
Issue Date, excluding in all cases Excluded Collateral:
(1) the Company shall deliver to the Collateral Agent, as mortgagee,
fully executed counterparts of Mortgages or amendments and supplements to
prior Mortgages, duly executed by the Company or the applicable Domestic
Restricted Subsidiary in form and substance reasonably satisfactory to the
Collateral Agent (together with evidence of the completion - or
satisfactory arrangements for the completion - of all recordings and
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filings of such instruments) as may be necessary to create a valid,
perfected Lien (subject to no Liens other than Permitted Liens) on such
Oil and Gas Assets; and
(2) the Company shall deliver to the Collateral Agent an opinion
from local counsel in each state where such Oil and Gas Assets are
located, in form and substance reasonably satisfactory to the Collateral
Agent and covering such matters as Collateral Agent may reasonably
request, including without limitation, the enforceability of the relevant
Mortgage, as it may be supplemented or amended.
Each such Mortgage, amendment or supplement shall be delivered by the Company on
or prior to the first Business Day of each August, November, February or May
(beginning with August 1, 2007) that occurs:
(i) after the acquisition of such Oil and Gas Assets by the Company
or a Domestic Restricted Subsidiary or
(ii) if such Oil and Gas Assets were previously Excluded Collateral
but have ceased to be Excluded Collateral, after such cessation,
provided that if, prior to such date, the Company or a Domestic Restricted
Subsidiary grants a Lien on such Oil and Gas Assets to secure First Priority
Claims, such Mortgage, amendment or supplement must be delivered to the
Collateral Agent at the same time as such grant to secure First Priority Claims.
Section 4.24. Leasehold Mortgages and Filings; Landlord Waivers. The
Company and each of its Domestic Restricted Subsidiaries shall deliver Mortgages
with respect to the Company's leasehold interests in the premises (the "Leased
Premises") occupied by the Company or such Domestic Restricted Subsidiary
pursuant to leases which may be mortgaged by their terms or the terms of the
landlord consents (collectively, the "Leases," and individually, a "Lease").
Prior to Issue Date or the effective date of any Lease, as
applicable, the Company and such Subsidiaries shall provide to the Trustee all
of the items described in clauses (2), (3) and (4) of Section 4.22 above and in
addition shall use their respective reasonable commercial efforts to obtain an
agreement executed by the lessor under the Lease, whereby the lessor consents to
the Mortgage and waives or subordinates its landlord Lien (whether granted by
the instrument creating the leasehold estate or by applicable law), if any, and
which shall be entered into by the Collateral Agent.
Each of the Company and each of its Domestic Restricted Subsidiaries
that is a lessee of, or becomes a lessee of, real property, is, and will be,
required to use commercially reasonable efforts to deliver to the Collateral
Agent a landlord waiver, substantially in the form of the exhibit form thereof
to be attached to the Indenture, executed by the lessor of such real property;
provided that in the case where such lease is a lease in existence on the Issue
Date, the Company or its Domestic Restricted Subsidiary that is the lessee
thereunder shall have 90 days from the Issue Date to satisfy such requirement.
Section 4.25. Other Collateral. With respect to any other assets or
property (herein called "Other Collateral") that are neither Excluded Collateral
nor addressed in Section 4.22, 4.23 or 4.24 nor subject to the Security
Agreement and are owned by the Company or a Domestic Restricted Subsidiary on
the Issue Date or acquired by the Company or a Domestic Subsidiary after the
Issue Date, the Company or such Domestic Restricted Subsidiary will promptly
grant Liens covering such Other Collateral to the Collateral Agent pursuant to a
document or instrument on reasonable commercial terms that contains provisions
similar to those of the Security Agreement, if such Other Collateral is personal
property, or provisions similar to those of the Mortgages described in Section
4.22, if such Other Collateral is real property.
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Section 4.26. Additional Interest. If Additional Interest becomes
payable by the Company pursuant to the Registration Rights Agreement, the
Company shall deliver to the Trustee an Officers' Certificate stating (i) the
amount of Additional Interest due and payable, (ii) the Section of the
Registration Rights Agreement pursuant to which Additional Interest is due and
payable and (iii) the date on which Additional Interest is payable. Unless and
until a Trust Officer of the Trustee receives such an Officers' Certificate, the
Trustee may assume without inquiry that no Additional Interest is payable;
provided that the failure of the Company to deliver to the Trustee such
Officers' Certificate shall not relieve the Company of its obligation to pay any
such Additional Interest when due and payable.
ARTICLE FIVE
Successor Corporation
Section 5.01. Merger, Consolidation and Sale of Assets. The Company
will not, in a single transaction or series of related transactions, consolidate
or merge with or into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted Subsidiary of the
Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and the Company's Restricted Subsidiaries) whether as an
entirety or substantially as an entirety to any Person unless:
(1) either:
(a) the Company shall be the surviving or continuing
corporation; or
(b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of the Company and of
the Company's Restricted Subsidiaries substantially as an entirety
(the "Surviving Entity"):
(x) shall be a corporation or limited liability company
organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia; and
(y) shall expressly assume, (i) by supplemental
indenture (in form and substance reasonably satisfactory to
the Trustee), executed and delivered to the Trustee and the
Collateral Agent, the due and punctual payment of the
principal of, and premium, if any, and interest and Additional
Interest, if any, on, all of the Notes and the performance of
every covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of the Company to be
performed or observed thereunder and (ii) by amendment,
supplement or other instrument (in form and substance
reasonably satisfactory to the Trustee and the Collateral
Agent), executed and delivered to the Trustee, all obligations
of the Company under the Collateral Agreements, and in
connection therewith shall cause such instruments to be filed
and recorded in such jurisdictions and take such other actions
as may be required by applicable law to perfect or continue
the perfection of the Lien created under the Collateral
Agreements on the Collateral owned by or transferred to the
surviving entity;
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(2) immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(y) above (including giving effect
to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such transaction), the
Company or such Surviving Entity, as the case may be, (a) shall have a
Consolidated Net Worth at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction and (b) shall be able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12;
(3) immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection
with or in respect of the transaction), no Default or Event of Default
shall have occurred or be continuing; and
(4) the Company or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
Each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of this covenant
and Section 4.16) will not, and the Company will not cause or permit any
Guarantor to, consolidate with or merge with or into any Person, other than the
Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or
merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation,
limited partnership or limited liability company organized and existing
under the laws of the United States or any State thereof or the District
of Columbia;
(2) such entity assumes (a) by supplemental indenture (in form and
substance reasonably satisfactory to the Trustee), executed and delivered
to the Trustee, all of the obligations of the Guarantor under the
Guarantee and the performance of every covenant of the Guarantee, this
Indenture and the Registration Rights Agreement or (b) by amendment,
supplement or other instrument (in form and substance satisfactory to the
Trustee and the Collateral Agent) executed and delivered to the Trustee
and the Collateral Agent, all obligations of the Guarantor under the
Collateral Agreements and in connection therewith shall cause such
instruments to be filed and recorded in such jurisdictions and take such
other actions as may be required by applicable law to perfect or continue
the perfection of the Lien created under the Collateral Agreements on the
Collateral owned by or transferred to the surviving entity;
(3) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
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(4) such entity shall have delivered to the Trustee and Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation or merger complies with this Indenture.
Any merger or consolidation of (i) a Guarantor with and into the
Company (with the Company being the surviving entity) or another Guarantor or
(ii) a Guarantor or the Company with an Affiliate organized solely for the
purpose of reincorporating or reorganizing such Guarantor or the Company in
another jurisdiction in the United States or any state thereof or the District
of Columbia need only comply with:
(A) clause (4) of the first paragraph of this covenant; and
(B) (x) in the case of a merger or consolidation involving the
Company as described in clause (ii), clause (1)(b)(y) of the first
paragraph of this covenant and (y) in the case of a merger or
consolidation involving the Guarantor as described in clause (ii), clause
(2) of the immediately preceding paragraph.
Section 5.02. Successor Corporation Substituted. Upon any
consolidation, combination or merger or any transfer of all or substantially all
of the assets of the Company in accordance with the foregoing, in which the
Company is not surviving or the continuing corporation, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and the Notes with the same effect as if such surviving entity had been named as
such, provided, however, that the predecessor Company shall not be relieved from
the obligation to pay the principal of and interest on the Notes except in the
case of a sale of all of the Company's assets in a transaction that is subject
to, and that complies with the provisions of, Section 5.01 hereof.
ARTICLE SIX
Default and Remedies
Section 6.01. Events of Default. Each of the following is an "Event
of Default":
(1) the failure to pay interest and Additional Interest, if any, on
any Notes when the same becomes due and payable and the default continues
for a period of 30 days;
(2) the failure to pay the principal of or premium, if any, on any
Notes, when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer);
(3) a default in the observance or performance of any other covenant
or agreement contained in this Indenture (other than the payment of the
principal of, or premium, if any, or interest and Additional Interest, if
any, on any Note) or any Collateral Agreement which default continues for
a period of 30 days after the Company receives written notice specifying
the default (and demanding that such default be remedied) from the Trustee
or the Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a default with respect to Section 5.01, which
will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
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(4) the failure to pay at final maturity (after giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise
cured within 20 days from the date of acceleration) if the aggregate
principal amount of such Indebtedness, together with the principal amount
of any other such Indebtedness in default for failure to pay principal at
final maturity or which has been accelerated (in each case with respect to
which the 20-day period described above has elapsed), aggregates $5.0
million or more at any time;
(5) one or more judgments in an aggregate amount in excess of $5.0
million shall have been rendered against the Company or any of its
Restricted Subsidiaries (other than any judgment as to which a reputable
and solvent third party insurer has accepted full coverage) and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable;
(6) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Code with respect to
itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Code, (C) consents to the appointment of a Custodian of it or
for substantially all of its property, (D) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(E) makes a general assignment for the benefit of its creditors, or (F)
takes any corporate action to authorize or effect any of the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary
in an involuntary case or proceeding under any Bankruptcy Code, which
shall (A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
Significant Subsidiary, (B) appoint a Custodian of the Company or any
Significant Subsidiary or for substantially all of its property or (C)
order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of sixty
(60) consecutive days;
(8) any Collateral Agreement at any time for any reason shall cease
to be in full force and effect in all material respects, or ceases to give
the Collateral Agent the Liens, rights, powers and privileges purported to
be created thereby, superior to and prior to the rights of all third
Persons other than the holders of Permitted Liens and subject to no other
Liens except as expressly permitted by the applicable Collateral Agreement
or this Indenture;
(9) the Company or any of the Guarantors, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or
enforceability of any Collateral Agreement; or
(10) the Guarantee of any Significant Subsidiary ceases to be in
full force and effect or is declared to be null and void and unenforceable
or is found to be invalid or any Guarantor denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance
with the terms of this Indenture).
Section 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.01, clause (6) or (7) above with respect to the Company) shall
occur and be continuing and has not been waived, the Trustee or the Holders of
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at least 25% in principal amount of outstanding Notes may declare the principal
of, and premium, if any, and accrued interest and Additional Interest, if any,
on, all the Notes to be due and payable by notice in writing to the Company and
the Trustee specifying the Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same shall become immediately
due and payable.
(b) If an Event of Default specified in Section 6.01, clause (6) or
(7) above with respect to the Company occurs and is continuing, then all unpaid
principal of, and premium, if any, and accrued and unpaid interest and
Additional Interest, if any, on all of the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with respect to
the Notes as described in the preceding paragraphs, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences: (1) if the rescission would not conflict with any judgment or
decree; (2) if all existing Events of Default have been cured or waived except
nonpayment of principal, premium, if any, interest or Additional Interest, if
any, that has become due solely because of the acceleration; (3) to the extent
the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal and premium, if any, and Additional Interest, if
any, which has become due otherwise than by such declaration of acceleration,
has been paid; (4) if the Company has paid each of the Trustee and the
Collateral Agent its reasonable compensation and reimbursed each of the Trustee
and the Collateral Agent for its reasonable expenses, disbursements and its
advances; and (5) in the event of the cure or waiver of an Event of Default of
the type described in Section 6.01, clause (6) or (7) of the description above
of Events of Default, the Trustee shall have received an Officers' Certificate
and an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes, this
Indenture, any Collateral Agreement or any Guarantee.
The Trustee or the Collateral Agent may maintain a proceeding even
if it does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee, the Collateral Agent or any
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults. Subject to Sections 2.09,
6.07 and 9.02, the Holders of a majority in principal amount of the Notes may
waive any existing Default or Event of Default, and its consequences, except
(other than as provided in Section 6.02(c)) a default in the payment of the
principal of or premium, if any, or interest or Additional Interest, if any, on,
any Notes or in respect of a covenant or provision which under this Indenture
cannot be modified or amended without the consent of the Holder of each Note
then outstanding. When a Default or Event of Default is waived, it is cured and
ceases to exist and is deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been cured and
not to have occurred for every purpose of this Indenture, the Notes and the
Collateral Agreements, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
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Section 6.05. Control by Majority. Subject to Section 2.09, the
Intercreditor Agreement and applicable law, the Holders of a majority in
aggregate principal amount of the then outstanding Notes have the right to
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or the Collateral Agent, as the case may be,
or exercising any trust or power conferred on the Trustee or the Collateral
Agent, as the case may be, including, without limitation, any remedies provided
for in Section 6.03. Subject to Section 7.01 and 7.02(f), however, the Trustee
or the Collateral Agent, as the case may be, may refuse to follow any direction
(which direction, if sent to the Trustee or the Collateral Agent, as the case
may be, shall be in writing) that the Trustee or the Collateral Agent, as the
case may be, reasonably believes conflicts with any applicable law, this
Indenture, the Notes, the Guarantees or the Collateral Agreements, that the
Trustee or the Collateral Agent, as the case may be, determines may be unduly
prejudicial to the rights of another Holder, or that may subject the Trustee or
the Collateral Agent, as the case may be, to personal liability; provided that
the Trustee or the Collateral Agent, as the case may be, may take any other
action deemed proper by the Trustee or the Collateral Agent, as the case may be,
which is not inconsistent with such direction (which direction, if sent to the
Trustee or the Collateral Agent, as the case may be, shall be in writing).
Section 6.06. Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) subject to Section 2.09, Holders of at least 25% in principal
amount of the outstanding Notes make a written request to the Trustee to
institute proceedings in respect of that Event of Default;
(3) such Holders offer to the Trustee security or indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within sixty (60)
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such sixty (60) day period the Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
written direction which, in the opinion of the Trustee, is inconsistent
with the request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of, premium, if any, or
interest on such Note on or after the respective due dates set forth in such
Note (including upon acceleration thereof) or the institution of any proceeding
with respect to this Indenture or any remedy hereunder, including without
limitation acceleration, by the Holders of a majority in principal amount of
outstanding Notes; provided that upon institution of any proceeding or exercise
of any remedy, such Holders provide the Trustee with prompt notice thereof.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
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Section 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium, if any, and interest on a Note, on or after
the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee or Collateral Agent. If an
Event of Default in payment of principal of, premium, if any, or interest
specified in Section 6.01(1) or (2) occurs and is continuing, subject to the
Intercreditor Agreement, the Trustee and the Collateral Agent may recover
judgment (i) in its own name and (ii)(x) in the case of the Trustee, as trustee
of an express trust or (y) in the case of the Collateral Agent, as collateral
agent on behalf of each of the Holders, in each case against the Company or any
other obligor on the Notes for the whole amount of principal, premium, if any,
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest at the rate set forth in Section 4.01 and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Collateral Agent and their respective agents and
counsel and any other amounts due the Trustee under the Collateral Agreements
and Section 7.07 hereof.
Section 6.09. Trustee May File Proofs of Claim. The Trustee and the
Collateral Agent are authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee or the Collateral Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, the
Collateral Agent, their respective agents and counsel) and the Holders allowed
in any judicial proceedings relating to the Company or any other obligor upon
the Notes, any of their respective creditors or any of their respective property
and, subject to the Intercreditor Agreement, shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the
Trustee or Collateral Agent and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee or
Collateral Agent any amount due to it for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, the Collateral Agent, their
respective agents and counsel, and any other amounts due any such Person under
the Collateral Agreements and Section 7.07. The Company' payment obligations
under this Section 6.09 shall be secured in accordance with the provisions of
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
or Collateral Agent to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the Collateral Agent, as the case may be, to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article Six, it shall pay out the money in the
following order:
First: to the Trustee, the Collateral Agent, the Paying Agent and
the Registrar for amounts due under Section 7.07 (including payment of all
compensation expense, all liabilities incurred and all advances made by
the Trustee or the Collateral Agent, as the case may be, and the costs and
expenses of collection);
Second: if the Holders are forced to proceed against the Company
directly without the Trustee or the Collateral Agent, to Holders for their
collection costs;
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Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal, premium, if any, and interest respectively; and
Fourth: to the Company as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
Section 6.11. Undertaking for Costs. All parties to this Indenture
agree, and each Holder by its acceptance of its Note shall be deemed to have
agreed, that in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee or the Collateral Agent, as the
case may be, for any action taken or omitted by it as Trustee or the Collateral
Agent, as the case may be, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee or
the Collateral Agent, as the case may be, a suit by a Holder pursuant to Section
6.06, or a suit by a Holder or Holders of more than 10% in principal amount of
the outstanding Notes.
Section 6.12. Restoration of Rights and Remedies. If the Trustee,
the Collateral Agent or any Holder has instituted any proceedings 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,
the Collateral Agent or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee, the Collateral
Agent and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee, the Collateral Agent and the Holders shall continue as though no such
proceeding has been instituted.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.07, 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 addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14. Delay or Omission not Waiver. No delay or omission of
the Trustee or the Collateral Agent or of any Holder of any Note 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 in 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.
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ARTICLE SEVEN
Trustee
Section 7.01. Duties of Trustee. The duties and responsibilities of
the Trustee shall be as provided by the TIA and as set forth herein or in any
Collateral Agreement. All provisions of this Article Seven applicable to the
Trustee shall also apply to the Collateral Agent.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise thereof as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the TIA, and the Trustee need
perform only those duties as are specifically set forth in this Indenture
and no covenants or obligations shall be implied in or read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture;
provided, however, in case of any such certificates or opinions furnished
to the Trustee which by the provisions hereof are furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture but need not confirm or investigate the accuracy of mathematical
calculation or other facts stated herein.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
Sections 7.01(c)(1), (2) and (3) shall be in lieu of Section
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are herein expressly excluded form this Indenture, as
permitted by the TIA.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any liability or expense. The
Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture or the Collateral Agreements at the request of any Holders
unless such Holder has offered to the Trustee security and indemnity
satisfactory to the Trustee against such risk, liability or expense is not
reasonably assured to it.
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(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Money and assets held in trust by the Trustee need not be segregated
from other funds or assets held by the Trustee except to the extent required by
law.
(g) Anything in this Indenture to the contrary notwithstanding, in
no event shall the Trustee, the Paying Agent or the Registrar be liable under or
in connection with this Indenture for indirect, special, incidental, punitive or
consequential losses or damages of any kind whatsoever, including but not
limited to lost profits, whether or not foreseeable, even if the Trustee, the
Paying Agent or the Registrar has been advised of the possibility thereof and
regardless of the form of action in which such damages are sought.
(h) The Trustee shall not be liable for the failure to perform its
duties and obligations hereunder to the extent such failure is directly caused
by the failure of the Company to perform its obligations hereunder.
Section 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement
instrument, opinion, report, request direction, consent, order, bond, note or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
or both, which shall conform to Sections 11.04 and 11.05. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The written advice of the
Trustee's counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by the Trustee hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care and in good faith.
(d) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken in good faith which it reasonably believes to be
authorized or within its rights or powers under this Indenture.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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, upon reasonable notice to the Company, to
examine the books, records and premises of the Company, personally or by agent
or attorney and to consult with the officers and representatives of the Company,
including the Company's accountants and attorneys at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation. Except as expressly stated herein to
the contrary, in no event shall the Trustee have any responsibility to ascertain
whether there has been compliance with any of the covenants or provisions of
Articles Four or Five hereof.
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(f) Neither the Trustee nor the Collateral Agent, as the case may
be, will be under any obligation to exercise any of the rights or powers vested
in it by this Indenture or any Collateral Agreement at the request, order or
direction of any of the Holders of any Person pursuant to the provisions of this
Indenture unless such Holders or any Person shall have offered to the Trustee or
the Collateral Agent, as the case may be, reasonable indemnity satisfactory to
the Trustee or Collateral Agent, as the case may be, against the costs, expenses
and liabilities which may be incurred by it in compliance with such request,
order or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company and any resolution of the Board of Directors
shall be sufficient if evidenced by a copy of such resolution certified by an
Officer of the Company to have been duly adopted and in full force and effect on
the date hereof.
(i) 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 shall not be responsible for any willful misconduct or negligence
on the part of any agent or attorney appointed with due care and in good faith
by it hereunder.
(j) The Trustee shall not be liable for any action taken, suffered
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Indenture.
(k) The Trustee shall not be deemed to have notice or be charged
with knowledge of any Default or Event of Default unless the Trust Officer or
the Trustee shall have received from the Company, any Guarantor or any other
obligor upon the Notes or from any Holder written notice thereof at its address
set forth in Section 11.02 hereof, and such notice references the Notes and this
Indenture.
(l) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder (including without limitation as Collateral Agent
hereunder and under the Collateral Agreements), and each agent, custodian and
other Person employed to act hereunder.
(m) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any persons authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(n) The permissive right of the Trustee to take any action under
this Indenture or any Collateral Agreements shall not be construed as a duty to
so act.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company, any Subsidiary of the Company or their
respective Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11 of this Indenture, and the Trustee is subject to TIA
Sections 310(b) and 311.
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Section 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity, adequacy or sufficiency of this Indenture,
the Notes, or the Collateral Agreements, and it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Company in this Indenture, the Notes, the Collateral
Agreements or any other documents connected with the issuance of the Notes other
than the Trustee's certificate of authentication, which shall be taken as the
statement of Company, and the Trustee assumes no responsibility for their
correctness.
Beyond the exercise of reasonable care in the custody thereof and
the fulfillment of its obligations under this Indenture and the Collateral
Documents, the Trustee shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto. The Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property.
The Trustee makes no representations as to and shall not be
responsible for the existence, genuineness, value, sufficiency or condition of
any of the Collateral or as to the security afforded or intended to be afforded
thereby, hereby or by any Collateral Document, or for the validity, perfection,
priority or enforceability of the Liens or security interests in any of the
Collateral created or intended to be created by any of the Collateral
Agreements, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder, except to the extent such action or
omission constitutes gross negligence or willful misconduct on the part of the
Trustee, for the validity or sufficiency of the Collateral, any Collateral
Agreements or any agreement or assignment contained in any thereof, for the
validity of the title of the Company or any Guarantor to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or
Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
The Trustee shall have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Indenture or any other Collateral
Agreement by the Company or any other Person that is a party thereto or bound
thereby. The Trustee shall have no duty to file financing statements.
Section 7.05. Notice of Default. If a Default or an Event of Default
occurs and is continuing and if a Trust Officer has actual knowledge or has
received written notice from the Company or any Holder, the Trustee shall mail
to each Holder, with a copy to the Company, notice of the Default or Event of
Default within 30 days thereof unless such Default or Event of Default shall
have been cured or waived before the giving of such notice. Except in the case
of a Default or an Event of Default in payment of principal of, premium, if any,
or interest on, any Note, including an accelerated payment and the failure to
make payment on the Change of Control Payment Date pursuant to a Change of
Control Offer and, except in the case of a failure to comply with Article Five,
the Trustee may withhold the notice if and so long as its Board of Directors,
the executive committee of its Board of Directors or a committee of its
directors and/or Trust Officers in good faith determines that withholding the
notice is in the interest of the Holders.
Section 7.06. Reports by Trustee to Holders. Within 60 days after
each May 15, beginning with May 15, 2008, the Trustee shall, to the extent that
any of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and (c).
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A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed by the Trustee with the Commission and each
stock exchange or market, if any, on which the Notes are listed or quoted.
The Company shall promptly notify the Trustee if the Notes become
listed, quoted on or delisted from any stock exchange or market and the Trustee
shall comply with TIA Section 313(d).
Section 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee, the Collateral Agent, the Paying Agent and the Registrar (each an
"Indemnified Party") from time to time compensation for their respective
services as Trustee, Collateral Agent, Paying Agent or Registrar, as the case
may be, as the Trustee, Collateral Agent and the Company shall have agreed. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse each Indemnified Party
upon request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by it in connection with the performance of its duties
under, as the case may be, this Indenture or the Collateral Agreements. Such
expenses, disbursements and advances shall include the reasonable fees,
expenses, disbursements and advances of each of such Indemnified Party's agents
and counsel.
The Company and the Guarantors, jointly and severally, hereby
indemnify each Indemnified Party and its agents, employees, stockholders and
directors and officers for, and holds each of them harmless against, any loss,
damage, cost, claim, liability or expense (including taxes) incurred by any of
them except for such actions to the extent caused by any gross negligence or
willful misconduct on the part of such Indemnified Party, arising out of or in
connection with this Indenture or the Collateral Agreements or the
administration of this trust, including the reasonable costs and expenses of
enforcing this Indenture against the Company or any Guarantor (including this
Section 7.07) and defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder or thereunder (including the reasonable fees and expenses of
counsel). The Trustee shall notify the Company promptly of any claim asserted
against an Indemnified Party for which such Indemnified Party has advised the
Trustee that it may seek indemnity hereunder or under the Collateral Agreements.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. At the Indemnified Party's sole discretion, the
Company shall defend the claim and the Indemnified Party shall cooperate and may
participate in the defense; provided that any settlement of a claim shall be
approved in writing by the Indemnified Party. Alternatively, the Indemnified
Party may at its option have separate counsel of its own choosing and the
Company shall pay the reasonable fees and expenses of such counsel; provided
that the Company shall not be required to pay such fees and expenses if it
assumes the Indemnified Party's defense and there is no conflict of interest
between the Company and the Indemnified Party in connection with such defense as
reasonably determined by the Indemnified Party. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld.
To secure the Company's and each Guarantor's payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money
or property held or collected by the Trustee or the Collateral Agent, in its
capacity as such, for any amount owing it or any predecessor Trustee, except
money or property held in trust to pay principal of or interest on any
particular Notes.
When an Indemnified Party incurs expenses or renders services after
an Event of Default specified in Section 6.01(6) occurs, such expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration under
any Bankruptcy Code.
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The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture, the termination of the
Collateral Agreements or the resignation or removal of the Trustee.
The Trustee shall comply with the provisions of TIA Section
312(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee. The Trustee may resign upon 45
days' prior written notice to the Company. The Holders of a majority in
aggregate principal amount of the outstanding Notes may remove the Trustee by so
notifying the Company and the Trustee in writing and may appoint a successor
Trustee. The Company, by a Board Resolution, may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting with respect to the
Notes.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder in
writing of such event and shall promptly appoint a successor Trustee. Within one
year after the successor Trustee takes office, the Holders of a majority in
aggregate principal amount of the outstanding Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company 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 rights, powers, trusts, duties and obligations of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such Trustee so ceasing to act hereunder subject
nevertheless to its Lien, if any, provided for in Section 7.07. Upon request of
the Company or the successor Trustee, such retiring Trustee shall at the expense
of the Company and upon payment of the charges of the Trustee then unpaid,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee or
the Holders of a majority in aggregate principal amount of the outstanding
Notes, 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. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee, subject to the lien
provided in Section 7.07, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture.
If a successor Trustee does not take office within thirty (30) days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in aggregate principal amount of the
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Holder who
satisfies the requirements of TIA Section 310(b)(iii) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Company shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee to all Holders in
writing. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding any resignation or replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving
or transferee Person without any further act shall, if such resulting, surviving
or transferee Person is otherwise eligible hereunder, be the successor Trustee;
provided, however, that such Person shall be otherwise qualified and eligible
under this Article Seven.
In case any Notes 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 Notes
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
Section 7.10. Eligibility; Disqualification.
(a) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2), (3) and (5). The Trustee (or, in
the case of a Trustee that is an Affiliate of a bank holding company system, the
related bank holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company, as obligor of the Notes.
(b) If the Trustee has or acquires a conflicting interest within the
meaning of the TIA, 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 TIA and this Indenture.
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 7.12. Trustee as Collateral Agent and Paying Agent.
References to the Trustee in Sections 7.01(f), 7.02, 7.03, 7.04, 7.07 and 7.08
and the first paragraph of Section 7.09 shall include the Trustee in its role as
Collateral Agent and Paying Agent.
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Section 7.13. Co-Trustees, Co-Collateral Agent and Separate
Trustees, Collateral Agent.
(a) At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Collateral may at the time
be located, the Company and the Trustee shall have the power to appoint, and,
upon the written request of the Trustee or of the Holders of at least 25% in
principal amount of the Notes outstanding, the Company shall for such purpose
join with the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the Trustee,
of all or any part of the Collateral, to act as co-collateral agent, jointly
with the Collateral Agent, or to act as separate trustees or Collateral Agent of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 7.13. As of the Issue Date, the
Company hereby appoints The Bank of New as the initial Collateral Agent and The
Bank of New York hereby accepts such appointment and agrees to act and serve in
such capacity. If the Company does not join in such appointment within fifteen
(15) days after the receipt by it of a request so to do, or in case an Event of
Default has occurred and is continuing, the Trustee alone shall have the power
to make such appointment.
(b) Should any written instrument from the Company be required by
any co-trustee, co-Collateral Agent or separate trustee or separate Collateral
Agent so appointed for more fully confirming to such co-trustee or separate
trustee such property, title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and delivered by the Company.
(c) Every co-trustee, co-collateral agent or separate trustee or
separate collateral agent shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following terms, namely:
(i) The Notes shall be authenticated and delivered, and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee.
(ii) The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee or by the Trustee and such co-trustee or
separate trustee, or by the Collateral Agent and such co-Collateral Agent
or separate Collateral Agent, jointly as shall be provided in the
instrument appointing such co-trustee or separate trustee or co-Collateral
Agent or separate Collateral Agent, except to the extent that under any
law of any jurisdiction in which any particular act is to be performed,
the Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee, Collateral Agent or
co-Collateral Agent or separate Collateral Agent.
(iii) The Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company evidenced by a Board
Resolution, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section 7.13, and, in case an Event
of Default has occurred and is continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee, co-collateral
agent, separate trustee or separate collateral agent without the
concurrence of the Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee,
co-collateral agent, separate trustee or separate collateral agent so
resigned or removed may be appointed in the manner provided in this
Section 7.13.
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(iv) No co-trustee, co-collateral agent, separate trustee or
separate collateral agent hereunder shall be personally liable by reason
of any act or omission of the Trustee or the Collateral Agent, or any,
other such trustee or collateral agent hereunder.
(v) Any act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee or separate trustee and any
act of Holders delivered to the Collateral Agent shall be deemed to have
been delivered to each such co-collateral agent or separate collateral
agent.
ARTICLE EIGHT
Satisfaction and Discharge of Indenture
Section 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding Notes
upon compliance with the applicable conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and the Guarantors shall be deemed
to have been released and discharged from their obligations with respect to the
outstanding Notes, the Guarantees and the Collateral Agreements on the date the
applicable conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of the Sections and matters under this Indenture referred
to in clause (i) and (ii) below, and the Company and the Guarantors shall be
deemed to have satisfied all their other obligations under such Notes and this
Indenture, the Guarantees and the Collateral Agreements, except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive solely from
the trust fund described in paragraph (d) below and as more fully set forth in
such paragraph payments in respect of the principal of, and premium, if any,
interest and Additional Interest, if any, on, such Notes when such payments are
due, (ii) obligations listed in Section 8.03, subject to compliance with this
Section 8.01 and (iii) the rights, powers, trust, duties and immunities of the
Trustee and the Company's obligations in connection therewith. The Company may
exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) below with respect to the Notes.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company and its Restricted Subsidiaries
shall be released and discharged from their obligations under any covenant
contained in Sections 4.05 and 4.08, Sections 4.10 through 4.26 (provided that
the release and discharge of the Company's obligations under Section 4.26 shall
in no way relieve the Company of its obligation to pay any Additional Interest
when due and payable) and clause (2) of the first paragraph of Section 5.01 with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
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Notes and the Guarantees, 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
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
paragraph (a) hereof of the option applicable to this paragraph (c), subject to
the satisfaction of the conditions set forth in paragraph (d) below, Section
6.01(3) (solely as such Section 6.01(3) pertains to Sections 4.05 and 4.08,
Sections 4.10 through 4.26 (provided that the release and discharge of the
Company's obligations under Section 4.26 shall in no way relieve the Company of
its obligation to pay any Additional Interest when due and payable) and clause
(2) of the first paragraph of Section 5.01), 6.01(4), 6.01(5), 6.01(8), 6.01(9)
and 6.01(10) shall not constitute Events of Default.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) the Company shall have irrevocably deposited with the Trustee,
in trust, for the benefit of the Holders, U.S. Legal Tender or
non-callable U.S. Government Obligations or a combination thereof, in such
amounts and at such times as are sufficient, in the opinion of a
nationally-recognized firm of independent public accountants, to pay the
principal of, and premium, if any, interest and Additional Interest, if
any, on, the outstanding Notes on the stated dates for payment or
redemption, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change
in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit pursuant to clause (1) of this
paragraph (except such Default or Event of Default resulting from the
failure to comply with Section 4.12 or Section 4.16 as a result of the
borrowing of funds required to effect such deposit) or insofar as Defaults
or Events of Default from bankruptcy or insolvency events are concerned,
at any time in the period ending on the 91st day after the date of such
deposit;
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(5) such Legal Defeasance or Covenant Defeasance shall not result in
a breach of, or constitute a default under any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel (subject to customary qualifications and exclusions) to the effect
that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940.
Notwithstanding the foregoing, the Opinion of Counsel required by Section
8.01(d)(2) above with respect to a Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) shall become due and payable on the maturity date 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.
In the event all or any portion of the Notes are to be redeemed
through such irrevocable trust, the Company must make arrangements reasonably
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
Section 8.02. Satisfaction and Discharge. In addition to the
Company's rights under Section 8.01, this Indenture (subject to Section 8.03)
and all Liens on Collateral will be discharged and will cease to be of further
effect as to all outstanding Notes, when:
(1) either:
First: all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or
paid as provided in Section 2.07 and Notes 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) have been delivered to the Trustee for
cancellation; or
Second: all Notes not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (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
reasonably satisfactory to the Trustee, and the Company has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, and premium, if any, interest
and Additional Interest, if any, on, the Notes to the date of such
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stated maturity or redemption, as the case may be, together with
irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption,
as the case may be;
(2) the Company has paid all other sums payable by the Company under
this Indenture and the Collateral Agreements ; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and discharge
of this Indenture have been complied with.
Section 8.03. Survival of Certain Obligations. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.01 or 8.02, the respective obligations of the Company and the Trustee
under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.13, 4.01, 4.02 and
6.07, Article Seven and Sections 8.05, 8.06 and 8.07 shall survive until the
Notes are no longer outstanding, and thereafter the obligations of the Company
and the Trustee under Sections 7.07, 8.05, 8.06 and 8.07 shall survive.
Section 8.04. Acknowledgment of Discharge by Trustee. Subject to
Section 8.07, after (i) the conditions of Section 8.01 or 8.02 have been
satisfied, (ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and (iii) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
Section 8.05. Application of Trust Moneys. The Trustee shall hold
any U.S. Legal Tender or U.S. Government Obligations deposited with it in the
irrevocable trust established pursuant to Section 8.01. The Trustee shall apply
the deposited U.S. Legal Tender or the U.S. Government Obligations, together
with earnings thereon, through the Paying Agent, in accordance with this
Indenture and the terms of the irrevocable trust agreement established pursuant
to Section 8.01, to the payment of principal of, premium, if any, and interest
(including Additional Interest, if any) on the Notes. Anything in this Article
Eight to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the Company's request any U.S. Legal Tender or
U.S. Government Obligations held by it as provided in Section 8.01(d) which, in
the opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to the Company; Unclaimed Money. Subject to
Sections 7.07, 8.01 and 8.02, the Trustee and the Paying Agent shall promptly
pay to the Company upon written request from the Company any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time. The Trustee and
the Paying Agent shall pay to the Company, upon receipt by the Trustee or the
Paying Agent, as the case may be, of a written request from the Company any
money held by it for the payment of principal, premium, if any, or interest that
remains unclaimed for two years after payment to the Holders is required,
without interest thereon; provided, however, that the Trustee and the Paying
Agent before being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least thirty (30) days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
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be repaid to the Company, without interest thereon. After payment to the
Company, Holders entitled to money must look solely to the Company for payment
as general creditors unless an applicable abandoned property law designated
another Person, and all liability of the Trustee or Paying Agent with respect to
such money shall thereupon cease.
Section 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 8.01 or 8.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
and each Guarantor's obligations under this Indenture, the Collateral
Agreements, the Guarantees and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 or 8.02 until such time
as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender
or U.S. Government Obligations in accordance with Section 8.01 or 8.02;
provided, however, that if the Company has made any payment of premium, if any,
or interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
Section 8.08. Indemnity for Government Obligations. 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 8.01 or Section 8.02 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.
ARTICLE NINE
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders. From time to time, the
Company, the Guarantors, the Trustee and, if such amendment, modification,
waiver or supplement relates to any Collateral Agreement, the Collateral Agent,
without the consent of the Holders, may amend, modify or supplement this
Indenture, the Notes, the Guarantees and the Collateral Agreements:
(1) to cure any ambiguity, defect or inconsistency contained
therein;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of the Company's or a Guarantor's
obligations to Holders in accordance with Section 5.01 or Section 10.04,
as the case may be;
(4) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
of any such Holder under this Indenture, the Notes, the Guarantees or the
Collateral Agreements;
(5) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Notes, the
Guarantees, or the Collateral Agreements to any provision of the
"Description of Notes" in the Offering Circular to the extent that such
provision was intended to be a verbatim recitation of a provision of this
Indenture, the Notes, the Guarantees or the Collateral Agreements;
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(7) if necessary, in connection with any addition or release of
Collateral permitted under the terms of this Indenture or the Collateral
Agreements;
(8) to allow any Subsidiary or any other Person to guarantee the
Notes;
(9) to release a Guarantor as permitted by this Indenture and the
relevant Guarantee; or
(10) to release Collateral as permitted under the terms of this
Indenture or the Collateral Agreements.
Notwithstanding the foregoing, in formulating its opinion in regards
to this Section 9.01 the Trustee or the Collateral Agent, as applicable, is
entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel.
Section 9.02. With Consent of Holders. Subject to Section 6.07, the
Company, the Guarantors and the Trustee or the Collateral Agent, as applicable,
together, with the written consent of the Holder or Holders of a majority in
aggregate principal amount of the then outstanding Notes (subject to Section
2.09), may amend, modify or supplement this Indenture, the Notes, the
Guarantees, the Registration Rights Agreement and the Collateral Agreements
without notice to any other Holders. Subject to Section 6.07 and Section 2.09,
the Holder or Holders of a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Company with any provision of this
Indenture, the Collateral Agreements or the Notes without notice to any other
Holder. However, no such amendment, modification, supplement or waiver,
including a waiver pursuant to Section 6.04, may without the consent of:
(a) each Holder affected thereby,:
(1) reduce amount of Notes whose Holders must consent to an
amendment, supplement, modification or waiver of any provision of
this Indenture, the Notes, the Guarantees or the Collateral
Agreements;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, or Additional Interest on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on
which any Notes may be subject to redemption or reduce the
redemption price therefor;
(4) make any Notes payable in money other than that stated in
the Notes;
(5) make any change in provisions of this Indenture protecting
the right of each Holder to receive payment of principal of, or
premium, if any, interest and Additional Interest, if any, on, such
Note on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal
amount of Notes to waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer after the occurrence of a Change of Control or make and
consummate a Net Proceeds Offer with respect to any Asset Sale that
has been consummated or modify any of the provisions or definitions
with respect thereto;
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(7) subordinate the Notes or any Guarantee in right of payment
to secure, any other Indebtedness of the Company or any Guarantor;
(8) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance with
the terms of this Indenture; or
(9) make any change to Section 9.01 or this Section 9.02; and
(b) the Holders holding at least 75% in aggregate principal amount
of the Notes, release all or substantially all of the Collateral otherwise
than in accordance with the terms of this Indenture and the Collateral
Agreements.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with TIA. Every amendment, waiver or
supplement of this Indenture, the Notes, the Collateral Agreements or the
Guarantees shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents. Until an amendment,
waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. Subject to the
following paragraph, any such Holder or subsequent Holder may revoke the consent
as to such Holder's Note or portion of such Note by written notice to the
Trustee and the Company received before the date on which the Trustee, and if
such amendment, waiver or supplement relates to any Collateral Agreement, the
Collateral Agent, receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be either (i) at least thirty (30)
days prior to the first solicitation of such consent or (ii) the date of the
most recent list furnished to the Trustee under Section 2.05. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than ninety (90) days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any clauses of Section
9.02, in which case, the amendment, supplement or waiver shall bind only each
Holder of a Note who has consented to it and every subsequent Holder of a Note
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or portion of a Note that evidences the same debt as the consenting Holder's
Note; provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of, premium, if any, and interest on a
Note, on or after the respective due dates expressed in such Note, or to bring
suit for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
Section 9.05. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder of the Note to deliver the Note to the Trustee. The Trustee at the
written direction of the Company may place an appropriate notation on the Note
about the changed terms and return it to the Holder and the Trustee may place an
appropriate notation on any Note thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make an appropriate notation, or issue a new Note, shall not
affect the validity and effect of such amendment, supplement or waiver. Any such
notation or exchange shall be made at the sole cost and expense of the Company.
Failure to make the appropriate notation or issue a new Note shall not effect
the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, Etc. The Trustee and/or
the Collateral Agent, as applicable, shall execute any amendment, supplement or
waiver authorized pursuant to this Article Nine; provided that the Trustee or
the Collateral Agent, as the case may be, may, but shall not be obligated to,
execute any such amendment, supplement or waiver which adversely affects the
rights, duties or immunities of the Trustee or the Collateral Agent, as the case
may be, under this Indenture or any Collateral Agreement. The Trustee or the
Collateral Agent, as the case may be, shall be provided with, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall also state that the amendment or
supplement is a valid and enforceable obligation of the Company. Such Opinion of
Counsel shall not be an expense of the Trustee or the Collateral Agent, as the
case may be, and shall be paid for by the Company.
Section 9.07. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE TEN
Guarantee
Section 10.01. Guarantee. Each Guarantor hereby fully, irrevocably
and unconditionally, jointly and severally, unconditionally and irrevocably
guarantees (such guarantee to be referred to herein as the "Guarantee"), to each
of the Holders and to the Trustee and the Collateral Agent and their respective
successors and assigns that (i) the principal of, premium, if any and interest
on the Notes shall be promptly paid in full when due, subject to any applicable
grace period, whether upon redemption pursuant to the terms of the Notes, by
acceleration or otherwise, and interest on the overdue principal (including
interest accruing at the then applicable rate provided in this Indenture, the
Notes, the Guarantees and the Collateral Agreements after the occurrence of any
Event of Default set forth in Sections 6.01(6) or (7), whether or not a claim
for post-filing or post-petition interest is allowed under applicable law
following the institution of a proceeding under bankruptcy, insolvency or
similar laws), if any, and interest on any interest, if any, to the extent
lawful, of the Notes and all other obligations of the Company to the Holders,
the Trustee and the Collateral Agent hereunder, thereunder or under any
Collateral Agreement shall be promptly paid in full or performed, all in
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accordance with the terms hereof, thereof and of the Collateral Agreements ; and
(ii) in case of any extension of time of payment or renewal of any of the Notes
or of any such other obligations, the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in Section 10.03. The Guarantee of each
Guarantor shall rank senior in right of payment to all existing and future
subordinated Indebtedness of such Guarantor and equal in right of payment with
all other existing and future senior obligations of such Guarantor, including
borrowings or guarantees of borrowings under the Credit Agreement. Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes, this
Indenture or any Collateral Agreement, the absence of any action to enforce the
same, any waiver or consent by any of the Holders with respect to any provisions
hereof or thereof, any release of any other Guarantor, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and in this Guarantee. Each
Guarantor may consolidate with or merge into or sell its assets to the Company
or another Guarantor without limitation in accordance with Sections 5.01 and
4.16. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee, the Collateral Agent
or such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders, the Collateral Agent
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes
of this Guarantee notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of this Guarantee.
Section 10.02. Release of a Guarantor. A Guarantor will be released
from its Guarantee and the Collateral Agreements (and may subsequently dissolve)
without any action required on the part of the Trustee or any Holder:
(1) if (a) all of the Capital Stock issued by such Guarantor or all
or substantially all of the assets of such Guarantor are sold or otherwise
disposed of (including by way of merger or consolidation) to a Person
other than the Company or any of its Domestic Restricted Subsidiaries or
(b) such Guarantor ceases to be a Restricted Subsidiary, and the Company
otherwise complies, to the extent applicable, with Section 4.16, or
(2) if the Company designates such Guarantor as an Unrestricted
Subsidiary in accordance with the definition thereof, or
(3) if the Company exercises its Legal Defeasance option or its
Covenant Defeasance option as described in Section 8.01, or
(4) upon satisfaction and discharge of this Indenture or payment in
full of the principal of, and premium, if any, and accrued and unpaid
interest and Additional Interest, if any, on, the Notes and all other
Obligations that are then due and payable.
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The Trustee shall promptly deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section
10.02. At the Company's request and expense, the Trustee will execute and
deliver an instrument evidencing such release. Any Guarantor not so released
remains liable for the full amount of its Guarantee as provided in this Article
Ten.
Section 10.03. Limitation of Guarantor's Liability. Each Guarantor
and, by its acceptance hereof, each of the Holders hereby confirms that it is
the intention of all such parties that the guarantee by such Guarantor pursuant
to its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state law. To effectuate the
foregoing intention, the Holders and such Guarantor hereby irrevocably agree
that the obligations of such Guarantor under the Guarantee shall be limited to
the maximum amount as shall, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
10.05, result in the obligations of such Guarantor under the Guarantee not
constituting such fraudulent transfer or conveyance. The net worth of any
Guarantor for such purpose shall include any claim of such Guarantor against the
Company for reimbursement and any claim against any other Guarantor for
contribution.
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.
Each Guarantor (other than any Guarantor whose Guarantee is to be released in
accordance with the terms of the Guarantee and this Indenture in connection with
any transaction complying with Section 4.16) will not, and the Company will not
cause or permit any Guarantor to, consolidate with or merge with or into any
Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or
merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia;
(2) such entity assumes by (i) supplemental indenture (in form and
substance reasonably satisfactory to the Trustee), executed and delivered
to the Trustee, all of the obligations of the Guarantor under the
Guarantee and the performance of every covenant of the Guarantee and this
Indenture (ii) amendment, supplement or other instrument (in form and
substance satisfactory to the Trustee and the Collateral Agent) executed
and delivered to the Trustee and the Collateral Agent, all obligations of
the Guarantor under the Collateral Agreements and in connection therewith
shall cause such instruments to be filed and recorded in such
jurisdictions and take such other actions as may be required by applicable
law to perfect or continue the perfection of the Lien created under the
Collateral Agreements on the Collateral owned by or transferred to the
surviving entity; and
(3) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
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Notwithstanding the foregoing, any merger or consolidation of (i) a
Guarantor with and into the Company (with the Company being the surviving
entity) or another Guarantor or (ii) a Guarantor or the Company with an
Affiliate organized solely for the purpose of reincorporating such Guarantor or
the Company in another jurisdiction in the United States or any state thereof or
the District of Columbia need only comply with (A) clause (4) the first
paragraph of Section 5.01 and (B)(x) in the case of a merger or consolidation
involving the Company as described in clause (ii) above, clause (1)(b)(y) of the
first paragraph of Section 5.01 and (y) in the case of a merger or consolidation
involving the Guarantor as described in clause (ii), clause (2) of the first
paragraph of this Section 10.04.
Section 10.05. Contribution. In order to provide for just and
equitable contribution among the Guarantors, the Guarantors agree, inter se,
that each Guarantor that makes a payment or distribution under a Guarantee shall
be entitled to a pro rata contribution from each other Guarantor hereunder based
on the net assets of each other Guarantor. The preceding sentence shall in no
way affect the rights of the Holders of Notes to the benefits of this Indenture,
the Notes or the Guarantees.
Section 10.06. Waiver of Subrogation. Each Guarantor agrees that it
shall not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
Section 10.07. Evidence of Guarantee. To evidence their guarantees
to the Holders set forth in this Article Ten, each of the Guarantors hereby
agrees to execute the notation of Guarantee in substantially the form included
in the Notes attached as Exhibits A and B. Each such notation of Guarantee shall
be signed on behalf of each Guarantor by an Officer or an assistant Secretary.
An Officer (who shall, in each case, have been duly authorized by all requisite
corporate actions) of the Guarantors shall execute the Guarantees by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office or position at the time
the Trustee authenticates such Note, such Note shall nevertheless be valid.
Each Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer or assistant Secretary whose signature is on this
Indenture or on the Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Guarantee is endorsed, the Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
Section 10.08. Waiver of Stay, Extension or Usury Laws. Each
Guarantor covenants to the extent permitted by law that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law that would
prohibit or forgive such Guarantor from performing its Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Guarantee; and each Guarantor
hereby expressly waives to the extent permitted by law all benefit or advantage
of any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
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ARTICLE ELEVEN
Miscellaneous
Section 11.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control. Any provision of the TIA which is required to be included in a
qualified Indenture, but not expressly included herein, shall be deemed to be
included by this reference.
Section 11.02. Notices. Any notices or other communications required
or permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telex, by telecopier, by overnight courier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Dune Energy, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention:
Facsimile Number:
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Facsimile Number: (000) 000-0000
if to the Collateral Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Facsimile Number: (000) 000-0000
Each of the Company and the Trustee by written notice to each other
may designate additional or different addresses for notices to such Person. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if faxed; one (1)
Business Day after mailing if sent by overnight courier; and five (5) calendar
days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address or a notice sent by mail to the
Trustee shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder shall be mailed to
such Holder by first class mail or other equivalent means at such Holder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given to such Holder if so mailed within the time prescribed.
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Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 11.03. Communications by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture, any Collateral Agreement, any Guarantee or
the Notes. The Company, the Trustee, the Collateral Agent, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the Trustee
or the Collateral Agent, as the case may be, to take any action under this
Indenture or any Collateral Agreement, the Company shall furnish to the Trustee
or the Collateral Agent, as the case may be, upon request:
(a) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee or the Collateral Agent, as the case may be,
stating that, in the opinion of the signers, all conditions precedent to
be performed by the Company or the applicable Guarantor (as the case may
be), if any, provided for in this Indenture, any Collateral Agreement, the
Notes or the Guarantees relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company or
the applicable Guarantor (as the case may be), if any, provided for in
this Indenture relating to the proposed action have been complied with.
Section 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture or any Collateral Agreement, other than the
Officers' Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
Section 11.06. Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules in accordance with the Trustee's customary
practices for action by or at a meeting of Holders. The Paying Agent or
Registrar may make reasonable rules for its functions.
Section 11.07. Legal Holidays. A "Legal Holiday" used with respect
to a particular place of payment is a Saturday, a Sunday or a day on which
banking institutions in New York, New York at such place of payment are not
required to be open. If a payment date is a Legal Holiday at such place, payment
may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
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Section 11.08. Governing Law. THIS INDENTURE, THE NOTES, THE
GUARANTEES AND THE COLLATERAL AGREEMENTS (OTHER THAN THE MORTGAGES) SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE
GUARANTEES, THE COLLATERAL AGREEMENTS (OTHER THAN THE MORTGAGES) OR THE
TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.
Section 11.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 11.10. No Recourse Against Others. No affiliate, director,
officer, employee, incorporator or holder of any equity interests in the Company
or any direct or indirect parent corporation of the Company, as such, will have
any liability for any obligations of the Company under the Notes or this
Indenture, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The parties hereto acknowledge that
such waiver may not be effective to waive liabilities under the federal
securities laws.
Section 11.11. Successors. All agreements of the Company and the
Guarantors in this Indenture, the Notes, and the Guarantees shall bind their
successors. All agreements of the Trustee and the Collateral Agent in this
Indenture shall bind their respective successors.
Section 11.12. Duplicate Originals. All parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
Section 11.13. Severability. In case any one or more of the
provisions in this Indenture, the Notes or in the Guarantees shall be held
invalid, illegal or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
Section 11.14. Waiver of Jury Trial. EACH OF THE COMPANY, THE
GUARANTORS, THE TRUSTEE, THE COLLATERAL AGENT, AND BY ITS ACCEPTANCE THEREOF,
EACH HOLDER OF A NOTE, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE COLLATERAL AGREEMENTS, THE
NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.
Section 11.15. Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
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ARTICLE TWELVE
Agreement to Subordinate Security Interests; Security
Section 12.01. Grant of Security Interest.
(a) To secure the due and punctual payment of the principal of,
premium, if any, and interest on the Notes and amounts due hereunder and under
the Guarantees when and as the same shall be due and payable, whether on an
Interest Payment Date, at maturity, by acceleration, purchase, repurchase,
redemption or otherwise, and interest on the overdue principal of, premium, if
any, and interest (to the extent permitted by law), if any, on the Notes and the
performance of all other Obligations of the Company and the Guarantors to the
Holders, the Collateral Agent or the Trustee under this Indenture, the
Collateral Agreements, the Guarantees and the Notes, the Company and the
Guarantors hereby covenant to cause the Collateral Agreements to be executed and
delivered concurrently with this Indenture. The Collateral Agreements shall
provide for the grant by the Company and Guarantors party thereto to the
Collateral Agent security interests in the Collateral.
(b) Each Holder, by its acceptance of a Note, consents and agrees to
the terms of each Collateral Agreement, as the same may be in effect or may be
amended from time to time in accordance with their respective terms, and
authorizes and directs the Collateral Agent to enter into this Indenture and the
Collateral Agreements and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company shall, and shall cause each of
its Domestic Restricted Subsidiaries to, do or cause to be done, at its sole
cost and expense, all such actions and things as may be required by the
provisions of the Collateral Agreements, to assure and confirm to the Collateral
Agent the security interests in the Collateral contemplated by the Collateral
Agreements, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes and Guarantees
secured hereby, according to the intent and purpose herein and therein expressed
and subject to the Intercreditor Agreements, including taking all commercially
reasonable actions required or as may be reasonably requested by the Collateral
Agent to cause the Collateral Agreements to create and maintain, as security for
the Obligations contained in this Indenture, the Notes, the Collateral
Agreements and the Guarantees valid and enforceable, perfected (to the extent
required therein) security interests in and on all the Collateral, in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
other than as set forth in the Intercreditor Agreement, and subject to no other
Liens, in each case, except as expressly provided herein or therein. If required
for the purpose of meeting the legal requirements of any jurisdiction in which
any of the Collateral may at the time be located, the Company, the Trustee and
the Collateral Agent shall have the power to appoint, and shall take all
reasonable action to appoint, one or more Persons approved by the Trustee and
reasonably acceptable to the Company to act as co-Collateral Agent with respect
to any such Collateral, with such rights and powers limited to those deemed
necessary for the Company, the Trustee or the Collateral Agent to comply with
any such legal requirements with respect to such Collateral, and which rights
and powers shall not be inconsistent with the provisions of this Indenture, the
Notes or the Guarantees. The Company shall from time to time promptly pay all
reasonable financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture, the Collateral Agreements and any
amendments hereto or thereto and any other instruments of further assurance
required pursuant hereto or thereto.
Section 12.02. Intercreditor Agreement. This Indenture and the
Collateral Agreements are subject to the terms, limitations and conditions set
forth in the Intercreditor Agreement. The Trustee, the Company and each Holder
of a Note, by its acceptance thereof, is deemed to have authorized and
instructed the Collateral Agent to enter into the Intercreditor Agreement on its
behalf.
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Section 12.03. Recording and Opinions.
(a) Each of the Company and the Guarantors shall file financing
statements in its jurisdiction of organization and in any other relevant
jurisdictions describing itself as debtor, the Collateral Agent as secured
party, and the collateral covered by such financing statements as "All assets of
Debtor, all proceeds thereof, and all rights and privileges with respect
thereto" (or substantially similar words) and, if the Collateral Agent so
requests, containing more specific descriptions of some or all of the
Collateral. The Company and the Guarantors, and each of them, hereby authorize
the Collateral Agent to file the foregoing financing statements from time to
time on their behalf in all relevant jurisdictions and to file amendments and
continuation statements from time to time with respect thereto. The Company
shall furnish to the Trustee, at such time as required by TIA Section 314(b) an
Opinion of Counsel either (i) stating that, in the opinion of such counsel, this
Indenture and the Collateral Agreements, financing statements and fixture
filings then executed and delivered, as applicable, and all other instruments of
further assurance or amendment then executed and delivered have been properly
recorded, registered and filed to the extent necessary to perfect the security
interests created by this Indenture and the Collateral Agreements and reciting
the details of such action or referring to prior Opinions of Counsel in which
such details are given, and stating that as to such Collateral Agreements and
such other instruments, such recording, registering and filing are the only
recordings, registerings and filings necessary to perfect such security interest
and that no re-recordings, re registerings, or re-filings are necessary to
maintain such perfection, and further stating that all financing statements and
continuation statements have been filed are necessary fully to preserve and
protect the rights of and perfect such security interests of the Trustee for the
benefit of itself and the Holders, under the Collateral Agreements or (ii)
stating that, in the Opinion of such Counsel, no such action is necessary to
perfect any security interest created under this Indenture, the Notes or any of
the Collateral Agreements as intended by this Indenture, the Notes or any such
Collateral Agreement.
(b) The Company shall furnish to the Trustee and the Collateral
Agent (if other than the Trustee), on or within one month of May 1 of each year,
commencing May 1, 2007, an Opinion of Counsel either (i) stating that, in the
opinion of such counsel, all action necessary to perfect or continue the
perfection of the security interests created by the Collateral Agreements and
reciting the details of such action or referring to prior Opinions of Counsel in
which such details are given have been taken or (ii) stating that, in the
Opinion of such Counsel, no such action is necessary to perfect or continue the
perfection of any security interest created under any of the Collateral
Agreements.
Section 12.04. Release of Collateral.
(a) Subject to the Intercreditor Agreement, the Collateral Agent
shall not at any time release Collateral from the security interests created by
the Collateral Agreements unless such release is in accordance with the
provisions of this Indenture and the applicable Collateral Agreements.
(b) Subject to the Intercreditor Agreement, at any time when an
Event of Default shall have occurred and be continuing, no release of Collateral
pursuant to the provisions of this Indenture and the Collateral Agreements shall
be effective as against the Holders.
(c) The release of any Collateral from the terms of the Collateral
Agreements shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Agreements. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to the release
of property from the security interests created by this Indenture and the
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Collateral Agreements to be complied with. Any certificate or opinion required
by TIA Section 314(d) may be made by an Officer of the Company, except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care. A Person is "independent" if such Person (a) is in fact independent, (b)
does not have any direct financial interest or any material indirect financial
interest in the Company or in any Affiliate of the Company and (c) is not an
officer, employee, promoter, underwriter, trustee, partner or director or person
performing similar functions to any of the foregoing for the Company. The
Trustee and the Collateral Agent shall be entitled to receive and rely upon a
certificate provided by any such Person confirming that such Person is
independent within the foregoing definition.
(d) Notwithstanding any provision to the contrary herein, Collateral
comprised of accounts receivable, inventory or (prior to the occurrence and
during the continuance of an Event of Default) the proceeds of the foregoing
shall be subject to release upon sales of such inventory and collection of the
proceeds of such accounts receivable in the ordinary course of business and, as
and when requested by the Company, to execute and deliver UCC financing
statement amendments or releases that delete Excluded Collateral from any
previously filed financing statements that included such Excluded Collateral in
the description of the assets covered thereby. If requested in writing by the
Company, the Trustee shall instruct the Collateral Agent to execute and deliver
such documents, instruments or statements and to take such other action as the
Company may request to evidence or confirm that the Collateral falling under
this Section 12.04 has been released from the Liens of each of the Collateral
Agreements. The Collateral Agent shall execute and deliver such documents,
instruments and statements and shall take all such actions promptly upon receipt
of such instructions from the Trustee.
Section 12.05. Specified Releases of Collateral. Subject to Section
12.04, Collateral may be released from the Lien and security interest created by
the Collateral Agreements at any time or from time to time in accordance with
the provisions of the Collateral Agreements or as provided hereby. Upon the
request of the Company pursuant to an Officers' Certificate certifying that all
conditions precedent hereunder have been met and without the consent of any
Holder, the Company will be entitled to releases of assets included in the
Collateral from the Liens securing the Notes under any one or more of the
following circumstances:
(1) to enable the Company to consummate asset dispositions permitted
or not prohibited under Section 4.16;
(2) if any Subsidiary that is a Guarantor is released from its
Guarantee that Subsidiary's assets will also be released from the Liens
securing the Notes;
(3) as described in Article 9; or
(4) if required in accordance with the terms of the Intercreditor
Agreement.
The Liens on all Collateral that secures the Notes and the Guarantees also will
be released:
(1) if the Company exercises its Legal Defeasance or Covenant
Defeasance options described under Section 8.01;
(2) upon satisfaction and discharge of this Indenture or payment in
full of the principal of, and premium, if any, and accrued and unpaid
interest on, the Notes and all other Obligations that are then due and
payable; or
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(3) as described in Article 9.
Upon receipt of such Officers' Certificate and any necessary or
proper instruments of termination, satisfaction or release prepared by the
Company, the Collateral Agent shall execute, deliver or acknowledge such
instruments or releases to evidence the release of any Collateral permitted to
be released pursuant to this Indenture or the Collateral Agreements.
Section 12.06. Release upon Satisfaction or Defeasance of all
Outstanding Obligations. The Liens on, and pledges of, all Collateral will also
be terminated and released upon any of (i) payment in full of the principal of,
and premium, if any, and accrued and unpaid interest on, the Notes and all other
Obligations that are then due and payable, (ii) upon satisfaction and discharge
of this Indenture as described above under Section 8.02, (iii) the occurrence of
a Legal Defeasance or Covenant Defeasance as described above under Section 8.01
and (iv) as described in [Article 9].
Section 12.07. Form and Sufficiency of Release. In the event that
the Company or any Guarantor has sold, exchanged, or otherwise disposed of or
proposes to sell, exchange or otherwise dispose of any portion of the Collateral
that may be sold, exchanged or otherwise disposed of by the Company or such
Guarantor, and the Company or such Guarantor requests the Trustee or the
Collateral Agent to furnish a written disclaimer, release or quit-claim of any
interest in such property under this Indenture and the Collateral Agreements,
the Collateral Agent and the Trustee, as applicable, shall execute, acknowledge
and deliver to the Company or such Guarantor (in proper form) such an instrument
promptly after satisfaction of the conditions set forth herein for delivery of
any such release. Notwithstanding the preceding sentence, all purchasers and
grantees of any property or rights purporting to be released herefrom shall be
entitled to rely upon any release executed by the Collateral Agent hereunder as
sufficient for the purpose of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
or of the Collateral Agreements.
Section 12.08. Purchaser Protected. No purchaser or grantee of any
property or rights purporting to be released herefrom shall be bound to
ascertain the authority of the Trustee or the Collateral Agent to execute the
release or to inquire as to the existence of any conditions herein prescribed
for the exercise of such authority; nor shall any purchaser or grantee of any
property or rights permitted by this Indenture to be sold or otherwise disposed
of by the Company be under any obligation to ascertain or inquire into the
authority of the Company to make such sale or other disposition.
Section 12.09. Authorization of Actions to Be Taken by the
Collateral Agent Under the Collateral Agreements. The Bank of New York is hereby
appointed to act in its capacity as the Collateral Agent. Subject to the
provisions of the applicable Collateral Agreements, (a) the Collateral Agent
shall execute and deliver the Collateral Agreements and act in accordance with
the terms thereof, (b) the Collateral Agent may, in its sole discretion and
without the consent of the Trustee or the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the
Collateral Agreements and (ii) collect and receive any and all amounts payable
in respect of the Obligations of the Company and the Guarantors hereunder and
under the Notes, the Guarantees, the Collateral Agreements and (c) the
Collateral Agent shall have power to institute and to maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any act that may be unlawful or in violation of the Collateral Agreements or
this Indenture, and suits and proceedings as the Collateral Agent may deem
expedient to preserve or protect its interests and the interests of the Trustee
and the Holders in the Collateral (including the power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest thereunder or
be prejudicial to the interests of the Holders, the Trustee or the Collateral
Agent). Notwithstanding the foregoing, the Collateral Agent may, at the expense
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of the Company, request the direction of the Holders with respect to any such
actions and upon receipt of the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Notes, shall take such
actions; provided that all actions so taken shall, at all times, be in
conformity with the requirements of the Intercreditor Agreement.
Section 12.10. Authorization of Receipt of Funds by the Collateral
Agent Under the Collateral Agreements. The Collateral Agent is authorized to
receive any funds for the benefit of itself, the Trustee and the Holders
distributed under the Collateral Agreements to the extent permitted under the
Intercreditor Agreement, for turnover to the Trustee to make further
distributions of such funds to itself, the Collateral Agent and the Holders in
accordance with the provisions of Section 6.11 and the other provisions of this
Indenture.
Section 12.11. Trustee Not Fiduciary for Holders of First Priority
Claims. Trustee Not Fiduciary for holders of First Priority Claims. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of First Priority
Claims and shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other person cash, property or securities to which any holders
of First Priority Claims shall be entitled by virtue of this Article or
otherwise. With respect to the holders of First Priority Claims, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of First Priority Claims shall be read into
this Indenture against the Trustee. NEWYORK 6065028 v9 (2K) Indenture
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
DUNE ENERGY, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
THE BANK OF NEW YORK, as Trustee and
Collateral Agent
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
GUARANTORS:
DUNE OPERATING COMPANY
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: President
VAQUERO PARTNERS LLC
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: President
