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EXHIBIT 4.2
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XXXXXX OIL CORPORATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of June 10, 1997
to
Indenture dated as of June 10, 1997
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 10, 1997, is between
XXXXXX OIL CORPORATION, a Delaware corporation (hereinafter called the
"Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association company (hereinafter called the "Trustee").
RECITALS
WHEREAS, the Company has executed and delivered to the Trustee an
Indenture, dated as of June 10, 1997 (the "Original Indenture" and as
supplemented by this First Supplemental Indenture, the "Indenture"), providing
for the issuance and sale by the Company from time to time of its debt
securities (the "Securities"), issuable in one or more series;
WHEREAS, all capitalized terms used herein which are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture unless otherwise defined herein;
WHEREAS, Section 901(5) of the Original Indenture permits the execution
of supplemental indentures to change or eliminate any of the provisions of the
Original Indenture, provided that such change or elimination shall become
effective only when there is no Security Outstanding prior to the execution of
such supplemental indenture which is adversely affected by such change in or
elimination of such provision; and
WHEREAS, there is currently no Security Outstanding prior to the
execution of the First Supplemental Indenture.
NOW, THEREFORE, the Company and the Trustee hereby agree that the
following provisions supplement and/or replace the Original Indenture:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. The following definitions are added to, or
substituted in lieu of definitions contained in, Section 101 of the Indenture:
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
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"Bank Credit Facility" means that certain Fifth Restated Credit
Agreement, as amended among the Company, NationsBank of Texas, N.A., as agent,
and the other banks named therein, as the same may be amended, modified,
supplemented, extended, restated, replaced, renewed or refinanced from time to
time.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest
in such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
Property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under GAAP, and, for the
purpose of this Indenture, the amount of such obligation at any date shall be
the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Fair Market Value" means the fair market value of a Property (including
shares of Capital Stock) as determined by the Board of Directors of the Company
and evidenced by a Board Resolution in good faith, which determination shall be
conclusive for purposes of this Indenture; provided, however, that unless
otherwise specified herein, the Board of Directors shall be under no obligation
to obtain any valuation or assessment from any investment banker, appraiser or
other third party.
"GAAP" means generally accepted accounting principles, consistently
applied, that are 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 of America, which are effective on the date of this First Supplemental
Indenture.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all liabilities of such Person for borrowed money or for the deferred
purchase price of Property or services (excluding any trade accounts payable
and other accrued current liabilities incurred in the ordinary course of
business), and all liabilities of such Person incurred in connection with any
letters of credit, bankers' acceptances or other similar credit transactions or
any agreement to purchase, redeem, exchange, convert or otherwise acquire for
value any Capital Stock of such Person, or any warrants, rights or options to
acquire such Capital Stock outstanding on the date of this First Supplemental
Indenture or thereafter, if, and to the extent, any of the foregoing would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, (ii) all obligations of such Person
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evidenced by bonds, notes, debentures or other similar instruments, if, and to
the extent, any of the foregoing would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, (iii) all Indebtedness
of such Person created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such Property), but
excluding trade accounts payable arising in the ordinary course of business,
(iv) all Capitalized Lease Obligations of such Person, (v) the Attributable
Indebtedness (in excess of any Capitalized Lease Obligations) related to any
Sale and Leaseback Transaction of such Person, (vi) all Indebtedness referred
to in the preceding clauses of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right to be secured by) any Lien upon Property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such Property or the amount of the obligation so
secured), (vii) all guarantees by such Person of Indebtedness referred to in
this definition (including, with respect to any Production Payment), any
warranties or guaranties of production or payment by such Person with respect
to a Production Payment but excluding other contractual obligations of such
Person with respect to such Production Payment, (viii) all Redeemable Capital
Stock of such Person valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends, (ix) all obligations of
such Person under or in respect of currency exchange contracts, oil and natural
gas price hedging arrangements and Interest Rate Protection Obligations (x)
Preferred Stock of any Restricted Subsidiary of the Company (other than
Preferred Stock held by the Company or any of its Restricted Subsidiaries) and
(xi) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of such Person of the types referred to in clauses
(i) through (x) above. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable 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 Redeemable Capital Stock, such Fair Market Value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock; provided, however, that if such Redeemable Capital
Stock is not at the date of determination permitted or required to be
repurchased, the "maximum fixed repurchase price" shall be the book value of
such Redeemable Capital Stock. Subject to clause (vii) of the first sentence
of this definition, neither Dollar-Dominated Production Payments nor Volumetric
Production Payments shall be deemed to be Indebtedness.
"Insolvency or Liquidation Proceeding" mean, with respect to any Person,
(a) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith, relative to such Person or its creditors, as such or its assets or
(b) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
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"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any agreement to give or xxxxx x Xxxx or any lease, conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing) upon or with respect to any Property of any kind. A Person
shall be deemed to own subject to a Lien any Property which such Person has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement.
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment to the Securities.
"Permitted Junior Securities" means any equity securities or
subordinated debt securities of the Company or any successor obligor with
respect to the Senior Indebtedness provided for by a plan of reorganization or
readjustment that, in the case of any such subordinated debt securities, are
subordinated in right of payment to all Senior Indebtedness that may at the
time be outstanding to substantially the same degree as, or to a greater extent
than, the Securities are so subordinated as provided in this Indenture.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Production Payments" means, collectively, Dollar-Denominated Production
Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the term of any security into which it is convertible or exchangeable
or by contract or otherwise, is, or upon the happening of an event or passage
of time would be, required to be redeemed prior to the final Stated Maturity of
the Securities or is redeemable at the option of the holder thereof at any time
prior to such final Stated Maturity, or is convertible into or exchangeable
for debt securities at any time prior to such final Stated Maturity.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which properties or assets are sold
or transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
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"Senior Indebtedness" means the principal of (and premium, if any, on)
and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law) and other amounts due
on or in connection with (including any fees, premiums, expenses, including
costs of collection, and indemnities) any Indebtedness of the Company, whether
outstanding on the date of this First Supplemental Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the, same is outstanding expressly provides that such Indebtedness will
be pari passu with or expressly subordinated in right of payment to the
Securities. Notwithstanding the foregoing, "Senior Indebtedness" will not
include (i) Indebtedness evidenced by the Securities; (ii) Indebtedness of the
Company that is Pari Passu Indebtedness or is expressly subordinated in right
of payment to any other Indebtedness of the Company, (iii) Indebtedness that is
represented by Redeemable Capital Stock, (iv) Indebtedness of the Company to
any Subsidiary of the Company or any other Affiliate of the Company or any
subsidiary of such Affiliate and (v) Indebtedness which when incurred and
without regard to any election under Section 1111(b) of the Federal Bankruptcy
Code is without recourse to the Company.
"Specified Senior Indebtedness" means (i) all Senior Indebtedness of the
Company in respect of the Bank Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings, or
replacements (each, for purposes of this definition, a "refinancing") thereof
by the Company, including any successive refinancings thereof by the Company
and (ii) any other Senior Indebtedness and any refinancings thereof by the
Company having a principal amount of at least $10,000,000 as of the date of
determination and provided that the agreements, indentures or other instrument
evidencing such Senior Indebtedness or pursuant to which such Senior
Indebtedness was issued specifically designates such Senior Indebtedness as
"Specified Senior Indebtedness" for purposes of this First Supplemental
Indenture.
"Subsidiary Guarantor" means any subsidiary guaranteeing a series of
Securities in accordance with the terms specified in an indenture supplemental
hereto pursuant to which Securities may be issued in accordance with Section
301.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
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ARTICLE II
THE SECURITIES
Section 2.1 Terms of Series -Defeasance and Discharge. Paragraph 16
of Section 301 of the Indenture is hereby deleted and replaced with the
following:
(16) any additional conditions to discharge pursuant to Section 402 or
404;
Section 2.2 Terms of Series -Subsidiary Guarantors. A new paragraph
(19) is added to Section 301 of the Indenture as follows:
(19) whether the Securities of the series are to be guaranteed by
Subsidiary Guarantors, and the terms of such guarantees.
ARTICLE III
DEFEASANCE AND COVENANT DEFEASANCE
Section 3.1 Defeasance and Covenant Defeasance. The following
replaces Article Four of the Indenture:
SECTION 401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to Securities of a particular series, elect to have either Section 402
or Section 403 hereof be applied to all Outstanding Securities of a particular
series, upon compliance with the conditions set forth below in this Article
Four.
SECTION 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 hereof of the option
applicable to this Section 402, the Company and the Subsidiary Guarantors, if
any shall be deemed to have been discharged from their respective obligations
with respect to all Outstanding Securities of a particular series on the date
the conditions set forth in Section 404 hereof are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company and any Subsidiary Guarantor shall be deemed (i) to have paid and
discharged their respective obligations under the Outstanding Securities;
provided, however, that the Securities of such series shall continue to be
deemed to be "Outstanding" for purposes of Section 405 hereof and the other
Sections of this Indenture referred to in clauses (a) and (b) below, and (ii)
to have satisfied all their other obligations under such Securities of such
series and this Indenture insofar as such Securities of such series are
concerned (and the Trustee, at the expense and direction of the Company, shall
execute proper
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instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 404 hereof and as more fully set forth in such
Section, payments in respect of the principal of (and premium if any, on) and
interest on such Securities of such series when such payments are due (or at
such time as the Securities of such series would be subject to redemption at
the option of the Company in accordance with this Indenture), (b) the
respective obligations of the Company and any Subsidiary Guarantor under
Sections 303, 304, 305, 306, 307, 508, 515, 607, 610, 611, 1002, 1003, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and (d)
the obligations of the Company and any Subsidiary Guarantor under this Article
Four. Subject to compliance with this Article Four, the Company may exercise
its option under this Section 402 notwithstanding the prior exercise of its
option under Section 403 hereof with respect to the Securities of such series.
SECTION 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 hereof of the option
applicable to this Section 403, the Company and any Subsidiary Guarantor shall
be released from their respective obligations under any covenant contained in
Article Eight, and in any other covenant specified in a supplemental indenture
hereto hereof with respect to the Outstanding Securities of a particular series
on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities of such series shall
thereafter be deemed not to be "Outstanding" for the purposes 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. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of a
particular series, the Company and any Subsidiary Guarantor 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 for failing to comply with the terms, agreements and
conditions contained in this Indenture, but, except as specified above, the
remainder of this Indenture and such Securities of such series and any
Securities of any other series shall be unaffected thereby.
SECTION 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
402 or Section 403 hereof to the Outstanding Securities of a particular series:
(i) The Company or any Subsidiary Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 hereof who shall agree to comply
with the provisions of this Article Four applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities of such series, (a) cash in U.S.
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Dollars in an amount, or (b) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment money in an amount, or (c) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on) and
interest on the Outstanding Securities of such series on the Stated Maturity
thereof (or Redemption Date, if applicable), provided that the Trustee shall
have been irrevocably instructed in writing by the Company to apply such money
or the proceeds of such U.S. Government Obligations to said payment with
respect to the Securities of such series. If the Securities of a particular
series are redeemable before their Stated Maturity in accordance with their
terms, the Company may give, before such a deposit, to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem all of
the Outstanding Securities at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given affect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct obligations
of the United States of America for the timely payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended), as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the amount of
the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(ii) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or, insofar
as Sections 501(5) and 501(6) are concerned, at any time during the period
ending on the 91st day after the date of such deposit.
(iii) Such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest under this Indenture or the Trust
Indenture Act with respect to any securities of the Company or any Subsidiary
Guarantor.
(iv) Such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under any other material
agreement or instrument to which the Company or any Subsidiary Guarantor is a
party or by which it is bound, as evidenced to the Trustee in an Officers'
Certificate delivered to the Trustee concurrently with such deposit.
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(v) In the case of an election under Section 402 hereof the Company
shall have delivered to the Trustee an Opinion of Counsel stating 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 laws, in either case providing that
the Holders of the Outstanding Securities of the particular series 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 (it being understood that (1) such
Opinion of Counsel shall also state that such ruling or applicable law is
consistent with the conclusions reached in such Opinion of Counsel and (2) the
Trustee shall be under no obligation to investigate the basis of correctness of
such ruling).
(vi) In the case of an election under Section 403 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders or the Outstanding Securities of the particular series will not
recognize income 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.
(vii) The Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 404.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together, state that all
conditions precedent provided for relating to either the legal defeasance under
Section 402 hereof or the covenant defeasance under Section 403 (as the case
may be) have been complied with.
SECTION 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 405, the "Trustee") pursuant to Section 404 hereof in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 404 hereof or the principal and interest received
in respect thereof other than any such tax,
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fee or other charge which by law is for the account of the Holders of the
Outstanding Securities of a particular series.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 404 hereof 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 which would then
be required to be deposited to effect an equivalent legal defeasance or
covenant defeasance, as applicable, in accordance with this Article Four.
SECTION 406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 405 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Subsidiary Guarantors' obligations
under this Indenture and the Securities of a particular series shall be revived
and reinstated as though no deposit had occurred pursuant to Section 402 or 403
hereof, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 405 hereof;
provided, however, that if the Company or any Subsidiary Guarantor makes any
payment of principal of (or premium if any, on) or interest on any Security of
a particular series following the reinstatement of its obligations, the Company
or such Subsidiary Guarantor shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE IV
SUBORDINATION OF SECURITIES
Section 4.1 Subordination. The following replaces Article Thirteen of
the Indenture:
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any, on)
and interest on, and any Additional Amounts with respect to, each and all of
the Securities are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full of all Senior
Indebtedness, whether outstanding on the date of the issuance of Securities of
a particular series or thereafter created, incurred. assumed or guaranteed;
provided, however, that the Securities, the Indebtedness represented thereby
and the payment of the principal
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of (and premium, if any, on) and interest on the Securities in all respects
shall rank equally with, or prior to, all existing and future unsecured
Indebtedness (including, without limitation, Indebtedness) of the Company that
is subordinated to Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder
and any one or more of them may enforce such provisions.
SECTION 1302. Payment over of Proceeds upon Dissolution, etc.
Upon any distribution of Properties of the Company or payment on behalf
of the Company with respect to the Securities in the event of any Insolvency or
Liquidation Proceeding with respect to the Company:
(i) the holders of Senior Indebtedness shall be entitled to receive
payment in full of such Senior Indebtedness, or provision must be made for such
payment, before the Holders of the Securities are entitled to receive any
direct or indirect payment or distribution of any kind or character, whether in
cash, property or securities (other than Permitted Junior Securities or from
any defeasance trust created pursuant to Article Four hereto) on account of
principal of (or premium, if any, on) or interest on the Securities or on
account of the purchase or redemption or other acquisition of Securities; and
(ii) any direct or indirect payment or distribution of Properties of
the Company of any kind or character, whether in cash, property or securities
(other than a payment or distribution in the form of Permitted Junior
Securities or from any defeasance trust created pursuant to Article Four
hereto), by set-off or otherwise, to which the Holders or the Trustee, on
behalf of the Holders, would be entitled but for the provisions of this Article
shall be paid by the Company or by any liquidating trustee or agent or other
Person making such payment or distribution whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate.
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(iii) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of Properties of the Company of any kind or character,
whether in cash, property or securities, by set-off or otherwise, in respect of
principal of (and premium, if any, on) or interest on the Securities before all
Senior Indebtedness is paid or provided for in full, then and in such event
such payment or distribution (other than a payment or distribution in the form
of Permitted Junior Securities or from any
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defeasance trust created pursuant to Article Four hereto) shall be paid over or
delivered forthwith to the holders of all Senior Indebtedness remaining unpaid,
or their representatives, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposition of all
or substantially all its Properties to another Person or group of Affiliated
Persons pursuant to, and in compliance with, the terms and conditions set forth
in Article Eight hereof shall not be deemed an Insolvency or Liquidation
Proceeding (requiring the repayment of all Senior Indebtedness in full as a
prerequisite to any payments being made to the Holders) for the purposes of
this Section.
SECTION 1303. Suspension of Payment When Senior Indebtedness in Default.
(i) Unless Section 1302 hereof shall be applicable, upon (a) the
occurrence of a Payment Event of Default and (b) receipt by the Trustee of
written notice of such occurrence, then no payment or distribution of any
Properties of the Company of any kind or character (other than Permitted Junior
Securities or from any defeasance trust created pursuant to Article Four
hereto) shall be made by the Company on account of principal of (or premium, if
any, on) or interest on the Securities or on account of the purchase or
redemption or other acquisition of Securities unless and until such Payment
Event of Default shall have been cured or waived in writing or shall have
ceased to exist or such Senior Indebtedness shall have been paid in full or
otherwise discharged, after which the Company shall resume making any and all
required payments in respect of the Securities, including any missed payments.
(ii) Unless Section 1302 hereof shall be applicable, upon (a) the
occurrence of a Nonpayment Event of Default and (b) receipt by the Trustee and
the Company of written notice of such occurrence from one or more of the
holders of Specified Senior Indebtedness (or their representative), then no
payment or distribution of any Properties of the Company of any kind or
character (other than Permitted Junior Securities or from any defeasance trust
created pursuant to Article Four hereto) shall be made by the Company on
account of any principal of (or premium, if any, on) or interest on the
Securities or on account of the purchase or redemption or other acquisition of
Securities for the period specified below (the "Payment Blockage Period"). The
Payment Blockage Period will commence upon the earlier of the dates of receipt
by the Trustee or the Company of such notice (the "Payment Blockage Notice")
from one or more of the holders of Specified Senior Indebtedness (or their
representative) and shall end on the earliest of (a) 179 days thereafter, (b)
the date, as set forth in a written notice from the holders of the Specified
Senior Indebtedness (or their representative) to the Company or the Trustee, on
which such Non-payment Event of Default is cured, waived in writing or ceases
to exist or such Specified Senior Indebtedness is discharged or (c) the date on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from one or more of the holders (or their
representative) initiating such Payment Blockage Period, after which the
Company will resume
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(unless otherwise prohibited pursuant to the immediately preceding paragraph)
making any and all required payments in respect of the Securities, including
any missed payments. In any event, not more than one Payment Blockage Period
may be commenced during any period of 360 consecutive days. No Non-payment
Event of Default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee will be, or can be, made the basis for
the commencement of a subsequent Payment Blockage Period.
(iii) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section 1303, then and in such event such
payment shall be paid over and delivered forthwith to the Company. In the
event that the Company shall make any payment in respect of the Securities to
the Trustee and the Trustee shall receive written notice of a Payment Event of
Default or a Non-payment Event of Default from one or more of the holders of
Specified Senior Indebtedness (or their representative) prior to making any
payment to Holders in respect of the Securities and prior to 11:00 a.m.,
Eastern time, on the date which is two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose, such
payments shall be paid over by the Trustee and delivered forthwith to the
Company.
SECTION 1304. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any Insolvency or Liquidation Proceeding referred to in Section
1302 hereof or under the conditions described in Section 1303 hereof, from
making payments at any time of principal of (and premium, if any, on) or
interest on the Securities.
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness.
After the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness to substantially the same extent as the Securities are so
subordinated and which is entitled to like rights of subrogation as a result of
the payments made to the holders of Senior Indebtedness) to the rights of the
holders of Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For purposes of such
subrogation, no payment or distributions to the holders of Senior Indebtedness
by or on behalf of the Company or by or on behalf of the Holders by virtue of
this Article which otherwise would have been made to the Holders shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be decreed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
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SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are, and are intended solely, for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (i) impair, as between the Company and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any, on) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or (ii) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness, or
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee as his attorney-in-fact for any and all such purposes,
including, in the event of any Insolvency or Liquidation Proceeding with
respect to the Company, the immediate filing of a claim for the unpaid balance
of his Securities pursuant to this Indenture in the form required in said
proceedings and the causing of said claim to be approved.
SECTION 1308. No Waiver of Subordination Provision.
(i) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(ii) Without in any way limiting the generally of paragraph (i) of
this Section, the holders of any Senior Indebtedness, in accordance with the
terms of the instrument or agreement evidencing their Senior Indebtedness, may,
at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to
the Holders of the Securities and without impairing or releasing the
subordination or other benefits provided in this Article, or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew, exchange,
amend, increase or alter, Senior Indebtedness or the terms of any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or any liability of any obligor thereon (unless such change,
extension, amendment, increase or other alteration results in such Indebtedness
no longer being
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Senior Indebtedness as defined in this Indenture), (b) sell, exchange, release
or otherwise deal with any Property pledged, mortgaged or otherwise securing
Senior Indebtedness, (c) settle or compromise any Senior Indebtedness or any
liability of any obligor thereon or release any Person liable in any manner for
the collection of Senior Indebtedness, and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1309. Notice to Trustee.
(i) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from
the Company or one or more of the holders of Senior Indebtedness (or their
representative), with respect to a Payment Default, or one or more of the
holders of Specified Senior Indebtedness (or their representatives) with
respect to a Non-payment Event of Default, or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in
all respects to assume that no such facts exist; provided, however, that, if
the Trustee shall not have received the notice provided for in this Section
prior to 11:00 a.m., Eastern time, on the date which is two Business Days prior
to the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any, on) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it on or after 11:00 a.m. Eastern time two
Business Days prior to such payment date.
(ii) Subject to TIA Sections 315(a) through 315(d), the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee or the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
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SECTION 1310. Reliance of Judicial Order or Certificate of Liquidating Agent
Bank.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Insolvency
or Liquidation Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1311. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness, which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607 hereof.
SECTION 1312. Article Applicable to Paying Agents.
In case at any time a Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1311 hereof shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1313. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Five hereof or to pursue any rights or
remedies hereunder or under applicable law, except as provided in Article Five
hereof.
SECTION 1314. Trust Money Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of U.S. Government Obligations held in trust under Article
Four hereof by the Trustee (or
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other qualifying trustee) and which were deposited in accordance with the terms
of Article Four hereof and not in violation of Section 1303 hereof for the
payment of principal of (and premium, if any, on) and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article Thirteen,
and none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness or any other creditor of the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
XXXXXX OIL CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Vice President - Finance
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
---------------------------
Title: Senior Trust Officer
---------------------------
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