EXHIBIT 4.2
MISSION RESOURCES CORPORATION
each
SUBSIDIARY GUARANTOR
Named Herein
and
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of April 8, 2004
$130,000,000
9 7/8% Senior Notes due 2011
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................... 1
1.1 DEFINITIONS.............................................................................. 1
1.2 OTHER DEFINITIONS........................................................................ 23
1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........................................ 24
1.4 RULES OF CONSTRUCTION.................................................................... 24
1.5 ONE CLASS OF SECURITIES.................................................................. 25
ARTICLE 2 [RESERVED] ................................................................................... 25
ARTICLE 3 THE NOTES .................................................................................... 25
3.1 TITLE AND TERMS; FORM AND DATING......................................................... 25
3.2 DENOMINATIONS............................................................................ 27
3.3 EXECUTION AND AUTHENTICATION............................................................. 27
3.3.1 SECURITY REGISTRAR AND PAYING AGENT...................................................... 28
3.4 PERSONS DEEMED OWNERS AND HOLDERS LISTS.................................................. 29
3.5 TRANSFER AND EXCHANGE.................................................................... 29
3.6 REPLACEMENT SECURITIES................................................................... 43
3.7 OUTSTANDING SECURITIES................................................................... 44
3.8 TREASURY SECURITIES...................................................................... 44
3.9 TEMPORARY SECURITIES..................................................................... 44
3.10 CANCELLATION............................................................................. 45
3.11 DEFAULTED INTEREST....................................................................... 45
3.12 CUSIP NUMBERS............................................................................ 46
3.13 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY................................................ 46
3.14 COMPUTATION OF INTEREST.................................................................. 47
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ARTICLE 4 SATISFACTION AND DISCHARGE.................................................................... 47
4.1 SATISFACTION AND DISCHARGE OF INDENTURE.................................................. 47
4.2 APPLICATION OF TRUST MONEY............................................................... 48
ARTICLE 5 REMEDIES ..................................................................................... 49
5.1 EVENTS OF DEFAULT AND REMEDIES........................................................... 49
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT....................................... 50
5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.......................... 52
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM......................................................... 52
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.............................. 53
5.6 APPLICATION OF MONEY COLLECTED........................................................... 53
5.7 LIMITATION ON SUITS...................................................................... 54
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT........................................ 54
5.9 RESTORATION OF RIGHTS AND REMEDIES....................................................... 54
5.10 RIGHTS AND REMEDIES CUMULATIVE........................................................... 55
5.11 DELAY OR OMISSION NOT WAIVER............................................................. 55
5.12 CONTROL BY HOLDERS....................................................................... 55
5.13 WAIVER OF PAST DEFAULTS.................................................................. 55
5.14 WAIVER OF STAY........................................................................... 56
ARTICLE 6 THE TRUSTEE .................................................................................. 56
6.1 DUTIES OF TRUSTEE........................................................................ 56
6.2 CERTAIN RIGHTS OF TRUSTEE................................................................ 57
6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES........................... 59
6.4 MAY HOLD SECURITIES...................................................................... 59
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6.5 MONEY HELD IN TRUST...................................................................... 59
6.6 COMPENSATION AND REIMBURSEMENT........................................................... 59
6.7 CORPORATE TRUSTEE REQUIRED: ELIGIBILITY................................................. 60
6.8 CONFLICTING INTERESTS.................................................................... 60
6.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........................................ 60
6.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................... 62
6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.............................. 62
6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........................................ 62
6.13 NOTICE OF DEFAULTS....................................................................... 63
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................. 63
7.1 HOLDERS' LISTS; HOLDER COMMUNICATIONS; DISCLOSURES RESPECTING HOLDERS.................... 63
7.2 REPORTS BY TRUSTEE....................................................................... 63
7.3 REPORTS BY COMPANY....................................................................... 64
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OF OR LEASE....................................... 64
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..................................... 64
8.2 SUCCESSOR SUBSTITUTED.................................................................... 66
ARTICLE 9 SUPPLEMENTAL INDENTURES....................................................................... 67
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS....................................... 67
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.......................................... 68
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES..................................................... 69
9.4 EFFECT OF SUPPLEMENTAL INDENTURES........................................................ 69
9.5 CONFORMITY WITH TRUST INDENTURE ACT...................................................... 69
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES....................................... 69
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9.7 NOTICE OF SUPPLEMENTAL INDENTURES AND WAIVERS............................................ 70
ARTICLE 10 COVENANTS ................................................................................... 70
10.1 PAYMENT OF SECURITIES.................................................................... 70
10.2 MAINTENANCE OF OFFICE OR AGENCY.......................................................... 70
10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.......................................... 70
10.4 CORPORATE EXISTENCE...................................................................... 72
10.5 PAYMENT OF TAXES AND OTHER CLAIMS........................................................ 72
10.6 MAINTENANCE OF PROPERTIES................................................................ 72
10.7 INSURANCE ............................................................................... 72
10.8 STATEMENT BY OFFICER AS TO DEFAULT....................................................... 73
10.9 REPORTS. ................................................................................ 73
10.10 LIMITATION ON RESTRICTED PAYMENTS........................................................ 74
10.11 LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK AND
REDEEMABLE CAPITAL STOCK................................................................. 78
10.12 LIMITATION ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED SUBSIDIARIES...................... 78
10.13 LIMITATION ON ISSUANCE, SALE AND OWNERSHIP OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES... 79
10.14 LIMITATION ON LIENS...................................................................... 80
10.15 PURCHASE OF SECURITIES UPON CHANGE OF CONTROL............................................ 80
10.16 LIMITATION OF ASSET SALES................................................................ 82
10.17 LIMITATION ON TRANSACTIONS WITH AFFILIATES............................................... 84
10.18 LIMITATION ON SALE-LEASEBACK TRANSACTIONS................................................ 85
10.19 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES............................................................................. 86
10.20 WAIVER OF CERTAIN COVENANTS.............................................................. 86
10.21 LIMITATION ON RESTRICTIVE COVENANTS...................................................... 87
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ARTICLE 11 REDEMPTION OF SECURITIES..................................................................... 87
11.1 RIGHT OF REDEMPTION...................................................................... 87
11.2 APPLICABILITY OF ARTICLE................................................................. 87
11.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE.................................................... 87
11.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED........................................ 88
11.5 NOTICE OF REDEMPTION..................................................................... 88
11.6 DEPOSIT OF REDEMPTION PRICE.............................................................. 89
11.7 SECURITIES PAYABLE ON REDEMPTION DATE.................................................... 89
11.8 SECURITIES REDEEMED IN PART.............................................................. 89
ARTICLE 12 DEFEASANCE AND DISCHARGE..................................................................... 90
12.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE............................. 90
12.2 DEFEASANCE AND DISCHARGE................................................................. 90
12.3 COVENANT DEFEASANCE...................................................................... 90
12.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.......................................... 91
12.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS................................................................. 93
12.6 REINSTATEMENT............................................................................ 93
ARTICLE 13 SUBSIDIARY GUARANTEES........................................................................ 94
13.1 UNCONDITIONAL GUARANTEE.................................................................. 94
13.2 SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS............................. 95
13.3 RELEASE OF SUBSIDIARY GUARANTORS......................................................... 96
13.4 LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY........................................... 96
13.5 CONTRIBUTION............................................................................. 97
13.6 EXECUTION AND DELIVERY OF NOTATIONS OF SUBSIDIARY GUARANTEES............................. 97
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13.7 SEVERABILITY............................................................................. 97
13.8 ARTICLE XIII NOT TO PREVENT EVENTS OF DEFAULT............................................ 98
13.9 PAYMENT. ................................................................................ 98
ARTICLE 14 MISCELLANEOUS ............................................................................... 98
14.1 COMPLIANCE CERTIFICATES AND OPINIONS..................................................... 98
14.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE................................................... 99
14.3 ACTS OF HOLDERS.......................................................................... 99
14.4 NOTICES, ETC. TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.............................. 100
14.5 NOTICE TO HOLDERS; WAIVER................................................................ 100
14.6 EFFECT OF HEADINGS AND TABLE OF CONTENTS................................................. 101
14.7 SUCCESSORS AND ASSIGNS................................................................... 101
14.8 SEPARABILITY CLAUSE...................................................................... 101
14.9 BENEFITS OF INDENTURE.................................................................... 101
14.10 GOVERNING LAW; TRUST INDENTURE ACT CONTROLS.............................................. 101
14.11 LEGAL HOLIDAYS........................................................................... 102
14.12 NO RECOURSE AGAINST OTHERS............................................................... 102
14.13 DUPLICATE ORIGINALS...................................................................... 102
14.14 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............................................ 103
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER............................................................... 2
EXHIBITS
A-1 Specimen of Rule 144A Global Note for Notes due 2011
A-2 Specimen of Regulation S Global Notes for Note due 2011
A-3 Specimen of Institutional Accredited Investor Certificated Note for
Notes due 2011
B Form of Certificate of Transfer
C Form of Certificate of Exchange
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Reconciliation and Tie between Trust Indenture Act of 1939 and
Indenture, dated as of April 8, 2004
Trust Indenture Indenture
Act Section Section
Section 310 (a)(1)............................................................... 6.7
(a)(2)............................................................... 6.7
(b).................................................................. 6.7, 6.8, 6.9
Section 311 (a).................................................................. 6.12
(b).................................................................. 6.12
Section 312 ..................................................................... 7.1
Section 313 ..................................................................... 7.2
Section 314 (a).................................................................. 7.3
(a)(4)............................................................... 10.8(1)
(c)(1)............................................................... 15.1
(c)(2)............................................................... 15.1
(d).................................................................. 15.1
Section 315 (a).................................................................. 6.1
(b).................................................................. 6.13
(c).................................................................. 6.1
(e).................................................................. 6.1
Section 316 (a)(last............................................................. 1.1
sentence)............................................................ ("Outstanding")
(a)(1)(A)............................................................ 5.2, 5.12
(a)(1)(B)............................................................ 5.13
(b).................................................................. 5.8
(c).................................................................. 15.3(iv)
Section 317 (a)(1)............................................................... 5.3
(a)(2)............................................................... 5.4
(b).................................................................. 10.3
Section 318 (a).................................................................. 15.10(ii)
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THIS INDENTURE, dated as of April 8, 2004, is among MISSION RESOURCES
CORPORATION, a Delaware corporation (hereinafter called the "Company"), the
SUBSIDIARY GUARANTORS (as defined hereinafter) and The Bank of New York, a New
York banking corporation (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of 9 7/8%
Senior Notes due 2011 herein, as amended or supplemented from time to time in
accordance with the terms hereof, of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
The Company owns, directly or indirectly, all of the equity ownership
of the outstanding Voting Stock of each initial Subsidiary Guarantor, and each
initial Subsidiary Guarantor is a member of the Company's consolidated group of
companies that are engaged in related businesses. Each initial Subsidiary
Guarantor will derive direct and indirect benefit from the issuance of the
Notes; accordingly, each initial Subsidiary Guarantor has authorized its
guarantee of the Company's obligations under this Indenture and the Notes, and
to provide therefor the initial Subsidiary Guarantors have duly authorized the
execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and will, to
the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when issued and
executed by the Company and authenticated and delivered by the Trustee as herein
provided, the valid obligations of the Company, to make the Subsidiary
Guarantees, when the notations thereof on the Notes are executed by the initial
Subsidiary Guarantors, the valid obligation of the initial Subsidiary Guarantors
and to make this Indenture a valid agreement of the Company, the initial
Subsidiary Guarantors and the Trustee, in accordance with their respective
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
(together with the related Subsidiary Guarantees) by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Notes (together with the related Subsidiary Guarantees), as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS.
"144A Global Note" means a Global Note in the form of Exhibit A-1
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Securities initially sold in reliance on Rule 144A.
"2001 Indenture" means the Indenture dated as of May 29, 2001 among the
Company, as issuer, subsidiaries of the Company named in the Indenture, as
Subsidiary Guarantors, and Bank of New York, as Trustee, as amended,
supplemented or otherwise modified from time to time.
"2001 Note Issue Date" means May 29, 2001.
"2001 Notes" means the Company's 10?% Senior Subordinated Notes due
2007 issued pursuant to the 2001 Indenture.
"2004 Credit Facility" means that certain Credit Agreement, dated as of
the Closing Date among the Company, certain Subsidiaries of the Company, the
Credit Facility Agent, and certain lenders named therein, as the same may be
amended, modified, supplemented, extended, restated, replaced, renewed or
refinanced from time to time.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an acquisition of Properties from such Person or (b) outstanding
at the time such Person becomes a Subsidiary of any other Person (in either case
other than any Indebtedness incurred in connection with, or in contemplation of,
such acquisition or such Person becoming such a Subsidiary). Acquired
Indebtedness will be deemed to be incurred on the date, of the related
acquisition of Properties from any Person or the date the acquired Person
becomes a Subsidiary.
"Act," when used with respect to any Holder, has the meaning specified
in Section 14.3.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date means the
amount by which the fair value of the Properties of such Subsidiary Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
its Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any other Person who is a director or
executive officer of (a) such specified Person or (b) any Person described in
the preceding clause (i). For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, will mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Note Registrar, Paying Agent, co-registrar,
authenticating agent or securities custodian.
"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 Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition by the Company or any Subsidiary (including, without
limitation, by way of merger or consolidation) (collectively, for purposes of
this definition, a "transfer"), to any Person other
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than the Company or any of its Restricted Subsidiaries and other than the sale
and issuance of director's qualifying shares, directly or indirectly, in one or
a series of related transactions, of (i) any Capital Stock (other than
Redeemable Capital Stock) of any Restricted Subsidiary held by the Company or
any Restricted Subsidiary, (ii) all or substantially all of the Properties of
the Company or any of its Restricted Subsidiaries or (iii) any other Properties
of the Company or any of its Restricted Subsidiaries (including Production
Payments and Reserve Sales) other than (a) a disposition of hydrocarbons or
other mineral products (other than Production Payments and Reserve Sales),
inventory, accounts receivable, cash, Cash Equivalents, Oil and Gas Hedging
Contracts, Interest Rate Protection Obligations, or other property in the
ordinary course of business, (b) any lease, abandonment, disposition,
relinquishment or farm-out of any developed or undeveloped oil and gas Property
in the ordinary course of business, (c) the liquidation of Property received in
settlement of debts owing to the Company or any Restricted Subsidiary as a
result of foreclosure, perfection or enforcement of any Lien or debt, which
debts were owing to the Company or any Restricted Subsidiary in the ordinary
course of business of the Company or such Restricted Subsidiary, (d) any
transfer of Properties that are governed by, and made in accordance with, the
provisions of Article 8 hereof, (e) any transfer of Properties if permitted
under Section 10.10 hereof, (f) any Production Payment and Reserve Sales
created, incurred, issued, assumed or guaranteed in connection with the
financing of, and within 60 days after, the acquisition of the Property that is
subject thereto, where the holder of such interest has recourse solely to such
production or proceeds of production, subject to the obligation of the grantor
or transferor to operate and maintain, or cause the subject interest to be
operated and maintained, in a reasonably prudent manner or other customary
standard or subject to the obligation of the grantor or transferor to indemnify
for environmental, title or other matters customary in the Oil and Gas Business,
(g) swaps or exchanges by the Company or a Restricted Subsidiary of leases or
producing properties and related or associated equipment, to the extent such
swaps or exchanges are for equivalent values; or (h) any transfer, in one or a
series of related transactions, of Properties having an aggregate Fair Market
Value of less than $1,000,000 in any fiscal year.
"Attributable Indebtedness" in respect of a Sale-Leaseback Transaction
means, at the time of determination, the present value of such obligations
implicit in such transaction, determined in accordance with GAAP.
"Authorized Officers" means each or any one or more of the Chairman of
the Board, the President or any Vice President and solely for purposes of
attesting to, or certifying the authenticity of signatures, documents,
instruments or agreements, Secretary or Assistant Secretary.
"Average Life" means, with respect to any Indebtedness or Preferred
Stock, as at any date of determination, the quotient obtained by dividing (i)
the sum of the products of (a) the number of years (and any portion thereof
rounded up to the nearest month) from the date of determination to the date or
dates of each successive scheduled principal payment (including, without
limitation, any sinking fund or mandatory redemption payment requirements) of
such Indebtedness or redemption or similar payment with respect to Preferred
Stock multiplied by (b) the amount of each such payment by (ii) the sum of all
such payments.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of such board
of directors and, with respect to
3
any Subsidiary, either the board of directors of such Subsidiary or any duly
authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
its Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and, with respect to a Subsidiary,
a copy of a resolution certified by the Secretary or an Assistant Secretary of
such Subsidiary to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Saturday or Sunday, or a day
on which banking institutions in The City of New York are authorized or required
by law, regulation or executive order to remain closed.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation 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; the stated maturity thereof shall be
the date of the last payment of any amount due under such obligation prior to
the first date upon which such obligation may be terminated by the obligee
without payment of penalty.
"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.
"Cash Equivalents" means: (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) demand and time deposits and certificates of
deposit or acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of 180 days or less issued by a corporation
that is not an Affiliate of the Company and is organized under the laws of any
state of the United States or the District of Columbia and rated at least A-1 by
S&P or at least P-1 by Xxxxx'x; (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any commercial bank meeting the specifications of
clause (ii) above; (v) overnight bank deposits and bankers' acceptances at any
commercial bank meeting the qualifications specified in clause (ii) above; (vi)
deposits available for withdrawal on demand with any commercial bank not meeting
the qualifications specified in clause (ii) above but which is organized under
the laws of any country in which the Company or any Restricted Subsidiary
maintains an office or is engaged in the Oil and Gas Business, provided that (A)
all such deposits are required to be made in such accounts in the ordinary
course of business, (B) such deposits do not at any one time exceed $5,000,000
in
4
the aggregate and (C) no funds so deposited remain on deposit in such bank for
more than 30 days; (vii) deposits available for withdrawal on demand with any
commercial bank not meeting the qualifications specified in clause (ii) above
but which is a lending bank under any of the Company's or any Restricted
Subsidiary's Credit Facilities, provided that all such deposits do not exceed
$5,000,000 in the aggregate at any one time; and (viii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) through (v).
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
shares representing more than 50% of the total voting power of the then
outstanding Voting Stock of the Company; (ii) the Company is merged with or into
or consolidated with another Person and, immediately after giving effect to the
merger or consolidation, (a) less than 50% of the total voting power of the
outstanding Voting Stock of the surviving or resulting Person is then
"beneficially owned" (within the meaning of Rule 13d-3 under the Exchange Act)
in the aggregate by the stockholders of the Company immediately prior to such
merger or consolidation, and (b) any "person" or "group" (as defined in Section
13(d)(3) or 14(d)(2) of the Exchange Act) has become the direct or indirect
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of the total voting power of the Voting Stock of the surviving or
resulting Person; (iii) the Company, either individually or in conjunction with
one or more Restricted Subsidiaries, sells, assigns, conveys, transfers, leases,
or otherwise disposes of, or one or more Restricted Subsidiaries sells, assigns,
conveys, transfers, leases or otherwise disposes of, all or substantially all of
the Properties of the Company and the Restricted Subsidiaries, taken as a whole
(either in one transaction or a series of related transactions), including
Capital Stock of the Restricted Subsidiaries, to any "person" or "group" (as
such terms are used in Section 13(d) and 14(d) of the Exchange Act) (other than
the Company or a Wholly Owned Restricted Subsidiary); (iv) during any
consecutive two-year period, individuals who at the beginning of such period
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 by a vote of a majority
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (v) the liquidation or dissolution
of the Company.
"Change of Control Offer" means an offer to purchase upon the request
of any Holder all or any part of the Notes of such Holder at the Change of
Control Purchase Price on the Change of Control Payment Date within 30 days
following any Change of Control.
"Closing Date" means the date on which Notes are originally issued
under the Indenture.
"Clearstream" means Clearstream Banking, S.A.
"Code" will mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations thereunder issued by the
Internal Revenue Service.
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"Commission" or "SEC" means the Notes and Exchange Commission; as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding-up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person will have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" will mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (i) the sum of Consolidated Net Income, Consolidated Interest Expense,
of Consolidated Income Tax Expense and Consolidated Non-cash Charges deducted in
computing Consolidated Net Income, in each case, for such period, of the Company
and its Restricted Subsidiaries on a consolidated basis, all determined in
accordance with GAAP, decreased (to the extent included in determining
Consolidated Net Income) by the sum of (a) the amount of deferred revenues that
are amortized during such period and are attributable to reserves that are
subject to Volumetric Production Payments and (b) amounts recorded in accordance
with GAAP as repayments of principal and interest pursuant to Dollar-Denominated
Production Payments, to (ii) the Consolidated Interest Expense for such period;
provided, however, that: (a) the Consolidated Fixed Charge Coverage Ratio will
be calculated on the assumption that (1) any Indebtedness to be incurred (and
all other Indebtedness incurred after the first day of such period of four full
fiscal quarters referred to in Section 10.11(1) hereof through and including the
date of determination) and (if applicable) the application of the net proceeds
therefrom (and from any other such Indebtedness), including to refinance other
Indebtedness, had been incurred on the first day of such period and, in the case
of Acquired Indebtedness or Indebtedness to be incurred in connection with an
acquisition or other transaction, on the assumption that the related transaction
(whether by means of purchase, merger or otherwise) also had occurred on such
date with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation and (2) any acquisition or disposition by
the Company or any Restricted Subsidiary of any Properties outside the ordinary
course of business, or any repayment of any principal amount of any Indebtedness
of the Company or any Restricted Subsidiary prior to the Stated Maturity
thereof, in either case since the first day of such period through and including
the date of determination, had been consummated on such first day of such
period; (b) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness required to be computed on a pro
forma basis in accordance with Section 10.11(1) hereof and (1) bearing a
floating interest rate will be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (2) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating
6
rate of interest, will be computed by applying, at the option of the Company,
either the fixed or floating rate; (c) in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness under
a revolving credit facility required to be computed on a pro forma basis in
accordance with Section 10.11(1) hereof will be computed based upon the average
daily balance of such Indebtedness during the applicable period, provided that
such average daily balance will be reduced by the amount of any repayment of
Indebtedness under a revolving credit facility during the applicable period,
which repayment permanently reduced the commitments or amounts available to be
reborrowed under such facility; (d) notwithstanding clauses (b) and (c) of this
proviso, interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by agreements relating to Interest Rate
Protection Obligations, will be deemed to have accrued at the rate per annum
resulting after giving effect to the operation of such agreements; (e) in making
such calculation, Consolidated Interest Expense will exclude interest
attributable to Dollar-Denominated Production Payments; and (f) if after the
first day of the period referred to in clause (i) of this definition the Company
has retired any Indebtedness out of the net cash proceeds of the issue and sale
of shares of Qualified Capital Stock of the Company within 30 days of such
issuance and sale, Consolidated Interest Expense will be calculated on a pro
forma basis as if such Indebtedness had been retired on the first day of such
period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes (including state franchise
taxes accounted for as income taxes in accordance with GAAP) of the Company and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, (i) the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (1) any amortization of
debt discount, (2) the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (3) the interest portion of any
deferred payment obligation constituting indebtedness, (4) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (5) all accrued interest, in each case to the
extent attributable to such period, (b) to the extent any Indebtedness of any
Person (other than the Company or a Restricted Subsidiary) is guaranteed by the
Company or any Restricted Subsidiary, the aggregate amount of interest paid (to
the extent not accrued in a prior period) or accrued by such other Person during
such period attributable to any such Indebtedness, in each case to the extent
attributable to that period, (c) the aggregate amount of the interest component
of Capitalized Lease Obligations paid (to the extent not accrued in a prior
period), accrued and/or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP and (d) the aggregate amount of dividends paid (to the
extent not accrued in a prior period) or accrued on Redeemable Capital Stock of
the Company and its Restricted Subsidiaries, to the extent such Redeemable
Capital Stock is owned by Persons other than the Company or its Restricted
Subsidiaries and to the extent such dividends are not paid in Common Stock; less
(ii) to the extent included in clause (i) above, amortization of capitalized
debt issuance costs of the Company and its Restricted Subsidiaries during such
period.
7
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted to the extent included in
calculating such net income (or loss) by excluding, without duplication, (i) net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (ii) net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (iii) the net income (or net
loss) of any Person (other than the Company or any of its Restricted
Subsidiaries), in which the Company or any of its Restricted Subsidiaries has an
ownership interest, except that the Company's or such Restricted Subsidiary's
equity in the net income of such Person shall be included in Consolidated Net
Income to the extent of the amount of dividends or other distributions or
interest on indebtedness actually paid to the Company or any of its Restricted
Subsidiaries in cash by such other Person during such period (regardless of
whether such cash dividends, distributions or interest on indebtedness is
attributable to net income (or net loss) of such Person during such period or
during any prior period) and (iv) the net income of any Subsidiary Guarantor to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary is not at the date of determination permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Company and its Restricted Subsidiaries less
(without duplication) the amount of such stockholders' equity attributable to
Redeemable Capital Stock or treasury stock of the Company and its Restricted
Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, depletion, amortization and other non-cash expenses of the Company
and its Restricted Subsidiaries reducing Consolidated Net Income for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such non-cash charge that requires an accrual of or reserve for cash charges
for any future period).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business will be
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, 0 X, Xxx Xxxx, Xxx Xxxx 00000.
"Covenant Defeasance" has the meaning set forth in Section 12.3.
"Credit Facilities" means, with respect to the Company, one or more
debt facilities or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrower from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded or replaced or refinanced in whole or in part from time to
time.
"Credit Facility Agent" means the "Agent" or "Agents" under the 2004
Credit Facility or any other Credit Facilities, initially Xxxxx Fargo Bank,
N.A., and thereafter any Person
8
succeeding substantially to such function and notified to the Company as the
Credit Facility Agent by the Person then acting in such capacity.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.11 hereof.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 3.5 hereof, in the form
of Exhibit A-1 hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors of the Company
is required to deliver a Board Resolution hereunder, a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest (other than in interest arising solely from the beneficial
ownership of Capital Stock of the Company) in or with respect to such
transaction or series of transactions.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Equity Offering" means a public or private sale for cash by the
Company of its common stock, or options, warrants or rights with respect to its
common stock, other than public offerings with respect to its common stock,
options, warrants or rights, registered on Form S-4 or S-8.
"Euroclear" means Euroclear SA/NV, as operator of the Euroclear system.
"Event of Default" has the meaning specified in Section 5.1 hereof.
"Excess PV-10 Value" means the greater of (i) the difference between
(x) the PV-10 Value of the Company and its Subsidiaries as reported in the
Company's most recent publicly filed financial statements minus (y) $325.0
million and (ii) 0.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Exchange Notes" means the notes issued in the Exchange Offer pursuant
to Section 3.5 hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
9
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"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 will be conclusive for purposes of this Indenture; provided,
however, that unless otherwise specified herein, the Board of Directors will be
under no obligation to obtain any valuation or assessment from any investment
banker, appraiser or other third party.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of The United States Code, as amended from time to time.
"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 were
effective as of the Closing Date.
"Global Note Legend" means the legend set forth in Section 3.5(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 3.1, 3.5(b)(iv), 3.5(d)(ii),
or 3.5(f) hereof.
"Guarantee" means any obligation, contingent or otherwise, of any
Person guaranteeing Indebtedness of another Person (including, without
limitation, obligations, agreements to purchase assets, securities or services,
to take-or-pay, or to maintain financial statement conditions, or similar
arrangements or agreements entered into for the purpose of assuring the obligee
of such Indebtedness of the payment thereof, including, without limiting the
foregoing, the payment of amounts drawn down by letters of credit, or to protect
such obligee against loss in respect thereof, in whole or in part), but
excluding (i) endorsements of negotiable instruments for collection or deposit
in the ordinary course of business, and (ii) contingent obligations in
connection with the sale or discount of accounts receivable and similar paper;
provided, however, that a Guarantee by any Person shall not include a
contractual commitment by one Person to invest in another Person and provided
further that such Investment is otherwise permitted by this Indenture. When used
as a verb, "Guarantee" shall have a corresponding meaning.
"Holder" means a Person in whose name a Note is registered in a Note
Register.
"Incur" has the meaning set forth in Section 10.11.
"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
10
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
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 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, title retention or similar 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) all obligations of such Person under or in
respect of currency exchange contracts, Oil and Gas Hedging Contracts and
Interest Rate Protection Obligations; (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 Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends; (viii) all
guarantees by such Person of Indebtedness referred to in this definition
(including, with respect to any Production Payment and Reserve Sales, any
warranties or guaranties of production or payment by such Person with respect to
such Production Payment and Reserve Sales, but excluding other contractual
obligations of such Person with respect to such Production Payment and Reserve
Sales); and (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. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price will 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 will 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 will 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" will be the book value of such Redeemable Capital Stock.
Subject to clause (viii) of the first sentence of this definition, neither
Dollar-Denominated Production Payments nor Volumetric Production Payments will
be deemed to be Indebtedness.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
11
"Initial Notes" means the 9 7/8% Senior Notes due 2011 authenticated
and delivered under this Indenture.
"Insolvency" or "Liquidation Proceeding" mean, with respect to any
Person, (i) 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
(ii) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Protection 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 Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and will include, without limitation, interest rate swaps, caps,
floors, collars and similar agreements or arrangements designed to protect
against or manage such Person's and any of its Subsidiaries' exposure to
fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee of Indebtedness or other extension of credit 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 by such Person of any Capital Stock, bonds, notes,
debentures or other securities (including derivatives) or evidences of
Indebtedness issued by, any other Person. In addition: (i) the Fair Market Value
of the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary will be deemed to be an
"Investment" made by the Company in such Unrestricted Subsidiary at such time;
and (ii) the Fair Market Value of Capital Stock retained by the Company or a
Restricted Subsidiary in connection with the sale or issuance of Capital Stock
of a Restricted Subsidiary in accordance with Section 10.13 hereof that, as a
result of such transaction, is no longer a Restricted Subsidiary will be deemed
to be an "Investment" made at the time of such transaction. "Investments" will
exclude: (a) extensions of trade credit under a joint operating agreement or
otherwise in the ordinary course of business, workers' compensation, utility,
lease and similar deposits and prepaid expenses in the ordinary course of
business; (b) Interest Rate Protection Obligations entered into in the ordinary
course of business or as required by any Permitted Indebtedness or any other
Indebtedness incurred in compliance with Section 10.11 hereof, but only to the
extent that the stated aggregate notional amounts of such Interest Rate
Protection Obligations do not exceed 105% of the aggregate principal amount of
such Indebtedness to which such Interest Rate Protection obligations relate; (c)
bonds, notes, debentures or other securities received as a result of Asset Sales
permitted under Section 10.16 hereof; and (d) endorsements of negotiable
instruments and documents in the ordinary course of business.
12
"Legal Defeasance" has the meaning set forth in Section 12.2.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Initial Notes for use by such
Holders in connection with the Exchange Offer.
"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, whether or not filed, recorded or
otherwise perfected under applicable law, (including, without limitation, any
agreement to give or xxxxx x Xxxx or any lease, conditional sale, title
retention or similar agreement having substantially the same economic effect as
any of the foregoing) upon or with respect to any Property of any kind. A Person
will be deemed to own subject to a Lien any Property that 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.
"Liquidated Damages" means all additional interest then owing pursuant
to Section 3 of the Registration Rights Agreement.
"Material Subsidiary" means, at any particular time, any Restricted
Subsidiary that, together with its Subsidiaries, (a) accounted for more than 5%
of the consolidated revenues of the Company and its Restricted Subsidiaries for
the most recently completed fiscal year of the Company, or (b) was the owner of
more than 5% of the consolidated assets of the Company and its Restricted
Subsidiaries at the end of such fiscal year, all as shown in the case of (a) and
(b) on the consolidated financial statements of the Company and its Restricted
Subsidiaries for such fiscal year.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale by any
Person, the aggregate proceeds thereof 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 (except to the extent that such obligations
are financed or sold with recourse to the Company or any Restricted Subsidiary),
pursuant to, or monetization of, a note or installment receivable or otherwise,
net of: (i) brokerage commissions and other fees and expenses (including without
limitation fees and expenses of legal counsel and investment banks) incurred by
such Person related to such Asset Sale; (ii) the amount of any Indebtedness
(including Redeemable Capital Stock or Preferred Stock of a subsidiary) that is
required to be repaid by such Person or its Affiliates in connection with such
Asset Sale; (iii) provisions for all taxes, including income taxes, payable as a
result of such Asset Sale or attributable to required prepayments or repayments
of Indebtedness with the proceeds of such Asset Sale; (iv) amounts required to
be paid to any Person or its Affiliates (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to the
Asset Sale or to holders of minority interests in a Restricted Subsidiary or
other entity as a result of such Asset Sale; and (v) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case may be, as a
reserve in accordance with GAAP applied against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be,
13
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, all as reflected in an Officers' Certificate delivered to the
Trustee; provided, however, that any amounts remaining after adjustments,
revaluations or liquidations of such reserves shall constitute Net Cash
Proceeds.
"Non-Recourse Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary incurred in connection with the acquisition by the Company
or such Restricted Subsidiary of any property with respect to which: (i) the
holders of such Indebtedness agree that they will look solely to the property so
acquired and securing such indebtedness, and neither the Company nor any
Restricted Subsidiary (a) provides direct or indirect credit support, including
any undertaking, agreement or instrument that would constitute Indebtedness
(other than the grant of a Lien on such acquired property) or (b) is directly or
indirectly liable for such indebtedness; and (ii) no default with respect to
such Indebtedness would cause, or permit (after notice or passage of time or
otherwise), according to the terms thereof, any holder (or any representative of
any such holder) of any other Indebtedness of the Company or a Restricted
Subsidiary to declare a default on such other indebtedness or cause the payment,
repurchase, redemption, defeasance or other acquisition or retirement for value
thereof to be accelerated or payable prior to any scheduled principal payment,
scheduled sinking fund payment or maturity.
"Notes" means the Initial Notes and the Exchange Notes, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Note Register" means the register maintained by or for the Company in
which the Company will provide for the registration of the Notes and transfer of
the Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Officers' Certificate" means a certificate signed by two Authorized
Officers of the Company, and delivered to the Trustee.
"Oil and Gas Business" means: (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon Properties; (ii) the gathering, marketing, treating, processing,
storage, selling and transporting of any production from such interests or
Properties; (iii) any business relating to or arising from exploration for or
development, production, treatment, processing, storage, transportation or
marketing of oil, gas, hydrocarbons and other minerals and products produced in
association therewith; (iv) any business relating to oil field sales and
service; and (v) any activity necessary, appropriate or incidental to the
activities described in the foregoing clauses (i) through (iv) of this
definition.
"Oil and Gas Hedging Contracts" means, with respect to the Company or
its Restricted Subsidiaries, any agreement or arrangement, or any combination
thereof, relating to hydrocarbon prices, transportation or basis costs or
differentials or other similar financial factors, that is customary in the Oil
and Gas Business and is entered into in the ordinary course of business for the
purpose of limiting or managing risks associated with fluctuations in such
prices, costs, differentials or similar factors and not for the purpose of
speculation.
14
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (or any Subsidiary Guarantor), including an employee of
the Company (or any Subsidiary Guarantor), and who will be reasonably acceptable
to the Trustee.
"Outstanding," when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company will act as its own Paying Agent) for
the Holders of such Notes, provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given Pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Notes, except to the extent provided in Sections 12.2 and 12.3
hereof, with respect to which the Company has effected Legal Defeasance or
Covenant Defeasance as provided in Article 12 hereof; and
(d) Notes which have been paid pursuant to Article 3 hereof or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect of
which there will have been presented to the Trustee proof satisfactory to it
that such securities are held by a bona fide purchaser in whose hands the Notes
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company, any Subsidiary Guarantor or any other obligor upon the Notes or any
Affiliate of the Company, any Subsidiary Guarantor or such other obligor will be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee will be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, consent, notice or
waiver, only Notes which a Responsible Officer of the Trustee actually knows to
be so owned will be so disregarded. Notes so owned that 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, any Subsidiary Guarantor or any
other obligor upon the Notes or any Affiliate of the Company, any Subsidiary
Guarantor or such other obligor.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (and premium, if
any, on), interest or Liquidated Damages, if any, on any Notes on behalf of the
Company.
15
"Permitted Indebtedness" means any of the following:
(a) Indebtedness under the Credit Facilities in an aggregate
principal amount at any one time outstanding not to exceed $75,000,000 (less the
aggregate amount of all Net Cash Proceeds of Asset Sales applied to repay or
prepay permanently any such Indebtedness under the 2004 Credit Facility in
accordance with Section 10.16 hereof) plus (ii) 40% of Excess PV-10 Value plus
(iii) 40% of PV-10 Value attributable to acquisition since the date of the
Company's most recent publicly filed financial statements, and any guarantee of
any such Indebtedness (including by any Subsidiary) and any fees, premiums,
expenses (including costs of collection), indemnities and other amounts payable
in connection with such Indebtedness;
(b) Indebtedness under the Notes and the Subsidiary Guarantees;
(c) Indebtedness outstanding on the date of this Indenture (and
not repaid or defeased with the proceeds of the offering of the Notes) and the
2001 Notes; provided, however that the 2001 Notes shall be repaid or defeased
with the proceeds of the offering of the Notes on or prior to the date 90 days
after the Closing Date);
(d) obligations of the Company or a Restricted Subsidiary pursuant
to Interest Rate Protection Obligations, but only to the extent that the stated
aggregate notional amounts of such obligations do not exceed 105% of the
aggregate principal amount of the Indebtedness covered by such Interest Rate
Protection Obligations; obligations under currency exchange contracts entered
into in the ordinary course of business; and obligations under Oil and Gas
Contracts;
(e) Indebtedness of the Company owed to a Wholly Owned Restricted
Subsidiary and Indebtedness of a Restricted Subsidiary to the Company or a
Wholly Owned Restricted Subsidiary; provided, however, that such Indebtedness is
owned beneficially by the Company or such Restricted Subsidiary and constitutes
Subordinated Indebtedness; provided further, that the incurrence of such
Indebtedness is in accordance with Section 10.10; and provided further, that
upon any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Wholly Owned Restricted Subsidiary ceasing to be a
Wholly Owned Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or a Wholly Owned Restricted Subsidiary),
such Indebtedness will be deemed, in each case, to be incurred and will be
treated as an incurrence for purposes of Section 10.10 and Section 10.11 at the
time the Wholly Owned Restricted Subsidiary in question ceased to be a Wholly
Owned Restricted Subsidiary;
(f) in-kind obligations relating to net gas balancing positions
arising in the ordinary course of business and consistent with past practice;
(g) Indebtedness in respect of bid, performance or surety bonds
issued for the account of the Company or any Restricted Subsidiary in the
ordinary course of business, including guarantees and letters of credit
supporting such bid, performance or surety obligations (in each case other than
for an obligation for money borrowed);
(h) any guarantee of Indebtedness incurred in compliance with
Section 10.11 hereof, by a Restricted Subsidiary or the Company;
16
(i) any renewals, substitutions, financings or replacements (each,
for purposes of this clause, a "refinancing") by the Company or a Restricted
Subsidiary of any Indebtedness incurred pursuant to clause (b) or (c) of this
definition, including any successive refinancings by the Company or such
Restricted Subsidiary not incurred in violation of this Indenture, so long as
(1) any such refinancing will be in a principal amount that does not exceed the
principal amount (or, if such Indebtedness being refinanced provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the Indebtedness
refinanced or the amount of any premium reasonably determined by the Company or
such Restricted Subsidiary as necessary to accomplish such refinancing, plus the
amount of expenses of the Company or such Restricted Subsidiary incurred in
connection with such refinancing, and (2) in the case of any refinancing of
Indebtedness of the Company that is not Subordinated Indebtedness, such new
Indebtedness shall rank no more senior than and shall be at least as
subordinated in right of payment to the Notes as the Indebtedness being
refinanced and (3) such new Indebtedness has an Average Life equal to or greater
than the Average Life of the Indebtedness being refinanced and a final Stated
Maturity not earlier than the final Stated Maturity of the Indebtedness being
refinanced; and
(j) any Indebtedness incurred to finance unpaid insurance
premiums, provided, however, that recourse with respect to such Indebtedness is
limited to the insurance policies with respect to which premiums have been
financed; and
(k) any Indebtedness in addition to that described in clauses (a)
through (j) above so long as the aggregate principal amount of such Indebtedness
incurred is not in excess of $10,000,000 at any one time outstanding.
"Permitted Investments" means any of the following: (i) Investments in
Cash Equivalents; (ii) Investments in the Company or any of its Restricted
Subsidiaries; (iii) Investments by the Company or any of its Restricted
Subsidiaries in another Person, if as a result of such Investment (a) such other
Person becomes a Restricted Subsidiary or (b) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its Properties to the Company or a Restricted Subsidiary; (iv) Investments and
expenditures made in the ordinary course of, and of a nature that is or will
have become customary in, the Oil and Gas Business as a means of actively
exploiting, exploring for, acquiring, developing, processing, gathering,
marketing or transporting oil and gas through agreements, transactions,
interests or arrangements which permit a Person to share risks or costs, comply
with regulatory requirements regarding local ownership or satisfy other
objectives customarily achieved through the conduct of the Oil and Gas Business
jointly with third parties, including, without limitation, (a) ownership
interests in oil and gas properties or gathering systems and (b) Investments and
expenditures in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements,
area of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts, joint venture
agreements, partnership agreements (whether general or limited), limited
liability company agreements, subscription agreements, stock purchase agreements
and other similar agreements with third parties (including Unrestricted
Subsidiaries); (v) entry into any hedging arrangements in the ordinary course of
business for the purpose of protecting the Company's or
17
any Restricted Subsidiary's production against fluctuations in oil or natural
gas prices; (vi) entry into any currency exchange contract in the ordinary
course of business; and (vii) Investments in stock, obligations or securities
received in settlement of debts owing to the Company or a Restricted Subsidiary
as a result of bankruptcy or insolvency proceedings or upon the foreclosure,
perfection or enforcement of any Lien in favor of the Company or a Restricted
Subsidiary, in each case as to debt owing to the Company or a Restricted
Subsidiary that arose in the ordinary course of business of the Company or any
such Restricted Subsidiary.
"Permitted Liens" means any and all of the following:
(a) Liens existing as of the Closing Date;
(b) Liens securing the Notes, the Subsidiary Guaranties and other
obligations arising under the Indenture;
(c) Liens securing Credit Facilities;
(d) any Liens existing on any property of a Person at the time
such Person is merged or consolidated with or into the Company or a Subsidiary
Guarantor or becomes a Restricted Subsidiary that is a Subsidiary Guarantor (and
not incurred in anticipation of such transaction), provided that such Liens are
not extended to other Property of the Company or the Subsidiary Guarantors;
(e) any Lien existing on any Property at the time of the
acquisition thereof (and not incurred in anticipation of such transaction),
provided that such Liens are not extended to other Property of the Company or
the Subsidiary Guarantors;
(f) Liens securing the performance of Oil and Gas Hedging
Contracts and Interest Rate Protection Obligations;
(g) Liens in favor of Persons financing unpaid insurance premiums,
provided, however, such Liens are limited to insurance policies with respect to
which premiums are financed;
(h) Liens to secure any permitted extension, renewal, refinancing,
refunding or exchange (or successive extensions, renewals, refinancings,
refundings or exchanges), in whole or in part, of or for any indebtedness
secured by Xxxxx referred to in clauses (a), (b), (c) and (d) above; provided,
however, that (1) such new Lien will be limited to all or part of the same
Property that secured the original Lien, plus improvements on such property and
(2) the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (x) the outstanding principal amount of the
indebtedness secured by such original Lien immediately prior to such extension,
renewal, refinancing, refunding or exchange and (y) an amount necessary to pay
any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement; and
(i) Liens in favor of the Company or a Subsidiary Guarantor.
18
"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.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.3 hereof in exchange for a mutilated
Note or in lieu of a lost, destroyed or stolen Note will be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
3.5(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Production Payments and Reserve Sales" means the grant and transfer to
any Person of a Dollar-Denominated Production Payment, Volumetric Production
Payment, royalty, overriding royalty, net profits interest, master limited
partnership interest or other interest in oil and natural gas properties,
reserves or the right to receive all or a portion of the production or the
proceeds from the sale of production attributable to such properties.
"PV-10 Value" means with respect to the properties and assets of the
Company and its Restricted Subsidiaries used in the Oil and Gas Business, the
sum of the present values of the amount of net revenues before income taxes
expected to be received from such properties and assets adjusted as follows: (i)
the net revenue amount shall be adjusted to reflect the weighted average fair
market value of unrealized losses or gains under Oil and Gas Hedging Contracts,
and (ii). the present value of net revenue amounts shall be determined by
discounting each such net revenue amount at a rate of 10% per annum in
accordance with SEC guidelines.
"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.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such Person other than Redeemable Capital Stock.
"Record Date" means a Regular Record Date or a Special Record Date.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms 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
Notes or is redeemable at the option of the holder thereof at any
19
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.
"Redemption Date," when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 8, 2004, by and among the Company, the Subsidiary
Guarantors and the other parties named on the signature pages thereof, as such
agreement may be amended, modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in
the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note in
the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject 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.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
20
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary of the
Company is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of this Indenture.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard and Poor's Ratings Service, a division of
XxXxxx-Xxxx, Inc., and its successors.
"Second Lien Term Loan Agreement" means that certain second lien term
loan agreement, dated as of the Closing Date, among the Company, certain
Subsidiaries of the Company, the collateral agent, and certain lenders named
therein, as the same may be amended, modified, supplemented, extended, restated,
replaced, renewed or refinanced from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Article 3 hereof.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness or any
installment of interest thereon, means the date specified in the instrument
evidencing or governing such Indebtedness as the fixed date on which the
principal of such Indebtedness or such installment of interest is due and
payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
21
"Subsidiary Guarantee" means any Guarantee of the Notes by any
Subsidiary Guarantor, as specified in Section 13.1 hereof.
"Subsidiary Guarantor" means (i) Black Hawk Oil Company, a Delaware
corporation, Mission Holdings LLC, a Delaware limited liability company and
Mission E&P Limited Partnership, a Texas limited partnership, (ii) each of the
other Restricted Subsidiaries, if any, executing a supplemental indenture in
compliance with the provisions of Section 10.12 hereof, and (iii) any Person
that becomes a successor guarantor of the Notes in compliance with the
provisions of Section 13.2 hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was executed,
except as provided in Section 9.5 hereof.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee will have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" will mean such successor Trustee.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global security in the
form of Exhibit A-1 attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means: (i) any Subsidiary of the Company that
at the time of determination is designated an Unrestricted Subsidiary by the
Board of Directors of the Company as provided below; and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the Company as an Unrestricted Subsidiary so long as: (a)
neither the company nor any Restricted Subsidiary is directly or indirectly
liable pursuant to the terms of any Indebtedness of such Subsidiary; (b) no
default with respect to any Indebtedness of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated maturity; (c) neither the Company nor any Restricted Subsidiary has
made an Investment in such Subsidiary unless the aggregate amount of all
Investments made in such Subsidiary by the Company and any such Restricted
Subsidiary would be permitted to be made on the date of such designation
pursuant to, and in accordance with, Section 10.10 hereof (other than
Investments in the ordinary course of the Oil and Gas Business as described in
clause (iv) of the definition of Permitted Investments); and (d) such
designation will not result in the creation or imposition of any Lien on any of
the Properties of the Company or any Restricted Subsidiary (other than any
Permitted Lien or any Lien the creation or imposition of which will have been in
compliance with Section 10.14 hereof); provided, however, that with respect to
clause (a), the Company or a Restricted Subsidiary may be liable for
Indebtedness of an Unrestricted Subsidiary if (x) such liability constituted a
Permitted Investment or a Restricted
22
Payment permitted by Section 10.10 hereof, in each case at the time of
incurrence, or (y) the liability would be a Permitted Investment at the time of
designation of such Subsidiary as an Unrestricted Subsidiary. Any such
designation by the Board of Directors of the Company will be evidenced to the
Trustee by filing a Board Resolution with the Trustee giving effect to such
designation.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary if, immediately after giving effect to
such designation, (i) no Default or Event of Default will have occurred and be
continuing, (ii) the Company could Incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 10.11(1) hereof and (iii) if any of
the Properties of the Company or any of its Restricted Subsidiaries would upon
such designation become subject to any Lien (other than a Permitted Lien), the
creation or imposition of such Lien will have been in compliance with Section
10.14 hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes will have, or might have, voting power by reason of
the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary to
the extent (i) all of the Capital Stock or other ownership interests in such
Restricted Subsidiary, other than any directors' qualifying shares mandated by
applicable law, is owned directly or indirectly by the Company or (ii) such
Restricted Subsidiary is organized in a foreign jurisdiction and is required by
the applicable laws and regulations of such foreign jurisdiction to be partially
owned by the government of such foreign jurisdiction or individual or corporate
citizens of such foreign jurisdiction in order for such Restricted Subsidiary to
transact business in such foreign jurisdiction, provided that the Company,
directly or indirectly, owns the remaining Capital Stock or ownership interest
in such Restricted Subsidiary and, by contract or otherwise, controls the
management and business of such Restricted Subsidiary and derives the economic
benefits of ownership of such Restricted Subsidiary to substantially the same
extent as if such Restricted Subsidiary were a wholly owned Subsidiary.
1.2 OTHER DEFINITIONS.
DEFINED TERM IN SECTION
------------ ----------
"Agent Members" 3.13
"Change of Control Notice" 10.15(b)
23
DEFINED TERM IN SECTION
------------ ----------
"Change of Control Offer" 10.15(a)
"Change of Control Payment Date" 10.15(a)
"Change of Control Purchase Price" 10.15(a)
"Defaulted Interest 3.11
"DTC" 3.3.1
"Excess Proceeds" 10.16(b)
"Funding Guarantor" 13.5
"Net Proceeds Deficiency" 10.16(c)(ii)
"Net Proceeds Offer" 10.16(c)(i)
"Net Proceeds Payment Date" 10.16(c)(iv)
"Note Registrar" 3.3.1
"Offered Price" 10.16(c)(ii)
"Payment Amount" 10.16(c)(i)
"Purchase Notice" 10.16(c)(i)
"Restricted Payment" 10.10(a)(v)
"Surviving Entity" 8.1(A)(1)(b)
"Trigger Date" 10.16(c)
"U.S. Government Obligations" 12.4(a)
1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the 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; and
"obligor" on the 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 rules and
not otherwise defined herein have the meanings assigned to them therein.
1.4 RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article 1 have the meanings assigned
to them in this Article 1, and include the plural as well as the singular;
24
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) the words "herein," "hereof," and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(d) the masculine gender includes the feminine and the neuter;
(e) provisions apply to successive events and transactions; and
(f) references to agreements and other instruments include
subsequent amendments and waivers but only to the extent not prohibited by this
Indenture.
1.5 ONE CLASS OF SECURITIES
The Initial Notes and the Exchange Notes shall vote and consent
together on all matters as one class and neither the Initial Notes nor the
Exchange Notes shall have the right to vote or consent as a separate class on
any matter.
ARTICLE 2
[RESERVED]
ARTICLE 3
THE NOTES
3.1 TITLE AND TERMS; FORM AND DATING
(a) General.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture for original issue is limited to $130,000,000.
The Notes will be known and designated as the "9 7/8% Senior Notes Due
2011," of the Company. The Stated Maturity of the Notes will be April 1, 2011,
and they will bear interest at the rate of 9 7/8% per annum from April 8, 2004,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable semiannually on April 1 and October 1 in each year,
commencing October 1, 2004, and at said Stated Maturity, until the principal
thereof is paid or duly provided for.
The Notes will be redeemable as provided in Article 11 hereof.
The Notes will be subject to defeasance at the option of the Company as
provided in Article 12 hereof.
The Notes will be guaranteed by the Subsidiary Guarantors as provided
in Article 13 hereof.
The Notes will be senior in right of payment to the Company's existing
and future Subordinated Indebtedness.
25
The Initial Notes and the Exchange Notes (including the notations
thereon relating to the Subsidiary Guarantees) and the Trustee's certificate of
authentication) will be issued substantially in the form of Exhibit A hereto.
Any Note that is a Restricted Definitive Note or a Restricted Global Notes shall
bear a Private Placement Legend as set forth in Section [3.5(g)(i)]. Any portion
of the text of any Note may be set forth on the reverse thereof. The Notes may
also have set forth on the reverse side thereof a form of assignment and forms
to elect purchase by the Company pursuant to Section 10.15 or 10.16 hereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
The Notes will be printed, lithographed or engraved on steel-engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Notes, or notations of Subsidiary Guarantees, as the
case may be, as evidenced by their execution of such Notes or notations of
Subsidiary Guarantees, as the case may be. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication. The Notes shall be in denominations of
$1,000 and integral multiples thereof.
(b) Global Notes.
Notes issued in global form shall be substantially in the form of
Exhibit A-1 or A-2 (including the Global Note Legend thereon and the "Schedule
of Exchanges of Interests in the Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A-1 attached
hereto (but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased (subject to the limitation set forth in Section 3.1(a)),
as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee as custodian for the Depositary in accordance with written instructions
given by the Holder thereof as required by Section 3.5 hereof.
(c) Temporary Global Notes.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York City office, as custodian for the Depositary, 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
26
by the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Note bearing a Private Placement Legend, all as contemplated by Section
3.5(a)(ii) hereof), and (ii) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Permanent Global Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Notes,
the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate
principal amount of the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) Euroclear, Clearstream Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Global Notes that are held by Participants
through Euroclear or Clearstream.
3.2 DENOMINATIONS
The Notes will be issuable only in denominations of $1,000 and any
integral multiple thereof.
3.3 EXECUTION AND AUTHENTICATION
The Notes will be executed on behalf of the Company by its Chairman,
its President or a Vice President of the Company and attested by its Secretary
or an Assistant Secretary of the Company. The signature of any two of these
Officers on the Notes may be manual or facsimile signatures of the present or
any future such Authorized Officer and may be imprinted or otherwise reproduced
on the Notes. Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company will bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company and having the notations of
Subsidiary Guarantees executed by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order signed by two officers of the
Company (the "Authentication Order") for the authentication and delivery of such
Notes, and the Trustee, in accordance with such Company Order, will
27
authenticate and deliver such Notes for original issue up to the aggregate
principal amount of $130,000,000 with the notations of Subsidiary Guarantees
thereon as provided in this Indenture.
No Note will be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of the Trustee and such certificate
upon any Note will be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company, pursuant to and in compliance with Article 8
hereof, will be consolidated or merged with or into any other Person or will
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its Properties to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company will have
been merged, or the Person which will have received a sale, conveyance,
transfer, lease or other disposition as aforesaid, will have executed an
indenture supplemental hereto with the Trustee pursuant to Article 8 hereof, any
of the Notes authenticated or delivered prior to such sale, consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person be exchanged for other Notes executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, will authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
will at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, will provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
The Trustee may (at the expense of the Company) appoint an
authenticating agent acceptable to the Company to authenticate Notes. 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 agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company and has the same
protections under Article 6 herein.
3.3.1 NOTE REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Note Registrar") and an
office or agency where Notes may be presented for payment. The Note Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more paying agents. The
term "Note Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional paying agent. The Company may change any Paying Agent or
Note Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as Note
Registrar or Paying Agent, the Trustee shall act as such. The
28
Company, any of its Subsidiaries or any Subsidiary Guarantor may act as Paying
Agent or Note Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Note Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
3.4 PERSONS DEEMED OWNERS AND HOLDERS LISTS
Prior to the due presentment of a Note for registration of transfer,
the Company, the Subsidiary Guarantors, the Note Registrar, the Trustee and any
agent of the Company, the Subsidiary Guarantors or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any, on) and
(subject to Section 3.11 hereof) interest and Liquidated Damages, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Company, the Subsidiary Guarantors, the Note Registrar,
the Trustee or any agent of the Company, the Subsidiary Guarantors or the
Trustee will be affected by notice to the contrary.
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
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Note Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA (S) 312(a).
3.5 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee written notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Note be exchanged by the Company for Definitive Notes prior to
(x) the expiration of the Restricted Period and (y) the receipt by the Note
Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under
the Securities Act. Upon the occurrence of either of the preceding events in (i)
or (ii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee in writing. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in
29
Sections 3.6 and 3.9 hereof. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 3.5 or Section 3.6 or 3.9 hereof, shall be authenticated and delivered
in the form of, and shall be, a Global Note. A Global Note may not be exchanged
for another Note other than as provided in this Section 3.5(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 3.5(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes.
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Temporary
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 the Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Note Registrar to
effect the transfers described in this Section 3.5(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
3.5(b)(i) above, the transferor of such beneficial interest must
deliver to the Note Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Note Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above;
provided that in no event shall Definitive securities be issued upon
the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Note Registrar of any
30
certificates required pursuant to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Company in accordance
with Section 3.5(f) hereof, the requirements of this Section 3.5(b)(ii)
shall be deemed to have been satisfied upon receipt by the Note
Registrar of the instructions contained in the Letter of Transmittal
delivered by the holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 3.5(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 3.5(b)(ii) above and
the Note Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 3.5(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Note Registrar receives the following:
31
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Note Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably
acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Note Registrar of
the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the
32
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
3.5(h) hereof, and the Company shall execute and the Trustee shall upon
receipt of an Authentication Order authenticate and deliver to the
Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 3.5(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Note Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall (at the expense of the Company) deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 3.5(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Notwithstanding Sections 3.5(c)(i)(A) and (C) hereof,
a beneficial interest in the Regulation S Temporary Global Note may not
be exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Note
Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case
33
of a transfer, certifies in the Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Note Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof,
and, in each such case set forth in this subparagraph (D), if
the Note Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably
acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
3.5(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 3.5(h) hereof, and the Company shall execute and the Trustee
shall upon receipt of an Authentication Order authenticate and (at the
expense of the Company) deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 3.5(c)(iv) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Note Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall (at the expense of the Company) deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered.
34
Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 3.5(c)(iv) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Note
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the Note
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof, the Trustee shall cancel the Restricted
Definitive Note, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, and in the case of
clause (C) above, the Regulation S Global Note.
(ii) Restricted Definitive Note to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
35
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Note Registrar receives the following:
(1) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Note Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably
acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 3.5(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a written request
for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Notes.
36
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at
a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 3.3 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 3.5(e), the Note Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Note Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Note Registrar duly executed by such Xxxxxx or by his attorney, duly authorized
in writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 3.5(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Note Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
37
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Note Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Note Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Note Registrar to the effect that
such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Note Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3, the Trustee shall
authenticate (i) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes tendered for acceptance by Persons that certify in the
Letters of Transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Company, and accepted for exchange in
the Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company shall execute
and the Trustee shall authenticate and (at the expense of the
38
Company) deliver to the Persons designated by the Holders of Definitive
securities so accepted Definitive Notes in the appropriate principal amount.
(g) Legends.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE
39
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S AND THE NOTE
REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION SATISFACTORY TO
EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraph
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 3.5 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.6 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 3.5(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 3.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE
40
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT")), THIS SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A
PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE
REFERRED TO HEREIN OR AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT."
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 3.10 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of securities
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(A) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon receipt of
an Authentication Order in accordance with Section 3.3 hereof
or upon receipt of a written request of the Note Registrar.
41
(B) No service charge shall be made to a holder
of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange,
but the Company 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 exchange or transfer
pursuant to Sections 3.9, 9.6, 10.15, 10.16 and 11.8).
(C) The Note Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(D) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes
or Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(E) The Company shall not be required (A) to
issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 11.4 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed
in part or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding Interest
Payment Date.
(F) Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent
and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and interest
on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice
to the contrary.
(G) The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of
Section 3.3 hereof.
(H) All certifications, certificates and
Opinions of Counsel required to be submitted to the Note
Registrar pursuant to this Section 3.5 to effect a
registration of transfer or exchange may be submitted by
facsimile.
(I) 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 Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global
Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required
42
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 requirement
hereof.
3.6 REPLACEMENT SECURITIES
If (i) any mutilated Note is surrendered to the Trustee or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company,
the Subsidiary Guarantors and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company will execute, the Subsidiary Guarantors will execute the
notation of Subsidiary Guarantees, and upon Company Order the Trustee will
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of the tenor and principal
amount, having the notation of Subsidiary Guarantees thereon, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this section in lieu of any
mutilated, destroyed, lost or stolen Note will constitute an original additional
continual obligation of the Company and the respective Subsidiary Guarantors,
whether or not the mutilated, destroyed, lost or stolen Note will be at any time
enforceable by anyone, and will be entitled to all benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and will preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
44
3.7 OUTSTANDING SECURITIES
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 3.8 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 3.6 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
10.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
3.8 TREASURY SECURITIES
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Subsidiary Guarantor, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any Subsidiary Guarantor shall be considered as though 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
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.
3.9 TEMPORARY SECURITIES
Pending the preparation of Definitive Notes, the Company may execute,
and upon Company Order the Trustee will authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
Definitive Notes in lieu of which they are issued and having the notations of
Subsidiary Guarantees thereon and with such appropriate insertions, omissions,
substitutions and other variations as the Authorized Officers executing such
Notes and notations of Subsidiary Guarantees may determine, as conclusively
evidenced by their execution of such Notes and notations of Subsidiary
Guarantees.
If temporary Notes are issued, the Company will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes will be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 10.2, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company will execute and the Trustee will authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized denominations
having the notations of Subsidiary
44
Guarantees thereon. Until so exchanged, the temporary Notes will in all respects
be entitled to the same benefits under this Indenture as Definitive Notes.
3.10 CANCELLATION
All Notes surrendered for payment, redemption, registration of transfer
or exchange will, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and will be promptly canceled by it. The Company may at
any time deliver to the Trustee for cancellation any securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered will be promptly canceled by the
Trustee. No Notes will be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All Canceled Notes held by the Trustee will be disposed of as
directed by a Company Order or in accordance with the Trustee's usual practice;
provided, however, that the Trustee will not be required to destroy canceled
Notes.
3.11 DEFAULTED INTEREST
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date will be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.2 hereof.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Notes (such defaulted interest and
interest therein herein collectively called "Defaulted Interest") may be paid by
the Company, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any
Defaulted Interest to the persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest,
which will be fixed in the following manner. The Company will notify
the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Note and the date of the proposed payment, and at the
same time the Company will deposit with the Trustee an amount of money
equal in the aggregate amount proposed to be paid in respect of such
Defaulted Interest or will make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, and
such money when deposited will be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee will fix a Special Record Date for the payment of
such Defaulted Interest which will be not more than is 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee will promptly notify the Company of such
Special Record Date, and in the name and at the expense of the Company,
will cause notice of the proposed payment of such Defaulted
45
Interest and the Special Record Date therefor to be given in the manner
provided for in Section 14.5 hereof, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest will be paid to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered
at the close of business on such Special Record Date and will no longer
be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment will be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note will carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
3.12 CUSIP NUMBERS
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders, provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
3.13 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
Each Global Note will be registered in the name of the Depositary for
such Global Note or the nominee or such Depositary and be delivered to the
Trustee as custodian for such Depositary. Members of, or participants in, the
Depositary ("Agent Members") will have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depositary, or the
Trustee as its custodian, or under such Global Note, and the Depositary may be
treated by the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors, or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein will prevent the Company, the Subsidiary Guarantors, or the
Trustee or any agent of the Company, the Subsidiary Guarantors, or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or will impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Note.
46
Transfers of a Global Note will be limited to transfers of such Global
Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred or exchanged for Definitive Notes in accordance with the rules and
procedures of the Depositary. Definitive Notes will be transferred to all
beneficial owners in exchange for their beneficial interests in a Global Note
if, and only if, either (i) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for the Global Note and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the Note
Registrar has received a request from the Depositary to issue Definitive Notes
in lieu of all or a portion of the Global Note (in which case the Company will
deliver Definitive Notes within 30 days of such request).
In connection with the transfer of an entire Global Note to beneficial
owners pursuant to this Section, the Global Note will be deemed to be
surrendered to the Trustee for cancellation, and the Company will execute, and
the Trustee will authenticate and deliver, to each beneficial owner identified
by the Depositary, in exchange for its beneficial interest in the Global Note,
an equal aggregate principal amount of Definitive Notes of authorized
denominations.
The Holder of the 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.
3.14 COMPUTATION OF INTEREST.
Interest on the Notes will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of Notes,
as expressly provided for in this Indenture) as to all outstanding Notes, and
the Trustee, at the expense of the Company, will, upon payment of all amounts
due the Trustee under Section 6.6 hereof, execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been mutilated, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6
hereof and (2) Notes for whose payment money or United States
governmental obligations of the type described in clause (i) of the
definition of Cash Equivalents have theretofore been deposited in trust
with the Trustee or any Paying Agent or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3 hereof) have been delivered to
the Trustee for cancellation, or
47
(b) all such Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the serving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (b)(i), (b)(ii) or (b)(iii) above, 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 (and
premium, if any, on) and interest on the Notes to the date of such deposit (in
the case of Notes which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be, together with instructions from the
Company irrevocably directing the Trustee to apply such funds to the Payment
thereof at maturity or redemption, as the case may be;
(c) the Company has paid or caused to be paid all other sums then
due and payable hereunder by the Company; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein relating to the satisfaction and discharge of this Indenture
have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.6 hereof and, if money
will have been deposited with the Trustee pursuant to this Section, the
obligations of the Trustee under Section 4.2 hereof and the last paragraph of
Section 10.3 hereof will survive.
4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3 hereof,
all money deposited with the Trustee pursuant to Section 4.1 hereof will be held
in trust and applied by it, in accordance with the provisions of the Notes 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 Persons entitled thereto, of the principal (and premium, if
any) and interest for whom payment such money has been deposited with the
Trustee.
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ARTICLE 5
REMEDIES
5.1 EVENTS OF DEFAULT AND REMEDIES.
"Event of Default," wherever used herein, means any one of the
following events:
(a) default in the payment when due of the principal of or
premium, if any, on any Note when the same becomes due and payable, whether such
payment is due at Stated Maturity, upon redemption, upon repurchase pursuant to
a Change of Control Offer or a Net Proceeds Offer, upon declaration of
acceleration or otherwise; or
(b) default in the payment of any installment of interest on, or
Liquidated Damages, if any, with respect to any of the Notes, when it becomes
due and payable, and the continuance of such default for a period of 30 days; or
(c) default in the performance or breach of the provisions of
Article 10 hereof, the failure to make or consummate a Change of Control Offer
in accordance with the provisions of Section 10.15 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
10.16; or
(d) failure of the Company or any Subsidiary Guarantor to comply
with any other term, covenant or agreement contained in the Notes, any
Subsidiary Guarantee or this Indenture (other than a default specified in
subparagraph (a), (b) or (c) above) for a period of 60 days after written notice
of such failure stating that it is a "notice of default" hereunder and requiring
the Company or such Subsidiary Guarantor, as the case may be, to remedy the same
will have been given (i) to the Company by the Trustee or (ii) to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Notes then Outstanding; or
(e) the occurrence and continuation beyond any applicable grace
period of any default in the payment when due on final maturity of the principal
of (or premium, if any, on) or interest on any Indebtedness of the Company
(other than the Notes) or any Restricted Subsidiary for money borrowed (other
than Non-Recourse Indebtedness), or any other default resulting in acceleration
of any Indebtedness of the Company or any Restricted Subsidiary for money
borrowed (other than Non-Recourse Indebtedness), provided that the aggregate
principal amount of such Indebtedness will exceed $5,000,000; or
(f) any Subsidiary Guarantee will, for any reason cease to be, or
be asserted by the Company or any Subsidiary Guarantor, as applicable, not to
be, in full force and effect, enforceable in accordance with its terms (except
pursuant to the release or termination of any such Subsidiary Guarantee in
accordance with this Indenture); or
(g) final judgments or orders rendered against the Company or any
Restricted Subsidiary that are unsatisfied and that require the payment in
money, either individually or in an aggregate amount, that is more than
$5,000,000 over the coverage under applicable insurance policies and either (i)
commencement by any creditor of an enforcement proceeding upon such judgment
(other than a judgment that is stayed by reason of pending appeal or otherwise)
or
49
(ii) the occurrence of a 60-day period during which a stay of such judgment or
order, by reason of pending appeal or otherwise, was not in effect; or
(h) the entry of a decree or order by a court having jurisdiction
in the premises (i) for relief in respect of the Company or any Material
Subsidiary in an involuntary case or proceeding under (the Federal Bankruptcy
Code or) any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (ii) adjudging the Company or any
Material Subsidiary bankrupt or insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or any
Material Subsidiary under the Federal Bankruptcy Code or any applicable federal
or state law, or appointing under any such law a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Material Subsidiary or of a substantial part of its consolidated
assets, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(i) the commencement by the Company or any Material Subsidiary of
a voluntary case or proceeding under the Federal Bankruptcy Code or any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or any other case or proceeding to be adjudicated bankrupt or
insolvent, or the consent by the Company or any Material Subsidiary to the entry
of a decree or order for relief in respect thereof in an involuntary case or
proceeding under the Federal Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by the Company or any Material Subsidiary of a petition or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it under any such law to the filing of any such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of any of the
Company or any Material Subsidiary or of any substantial part of its
consolidated assets, or the making by it of an assignment for the benefit of
creditors under any such law, or the admission by it in writing of its inability
to pay its debts generally as they become due or the taking of corporate action
by the Company or any Material Subsidiary in furtherance of any such action.
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If any Event of Default (other than an Event of Default specified in
Section 5.1(h) or 5.1(i) hereof) occurs and is continuing, the Trustee, by
written notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by notice to the Trustee and the
Company, may, and the Trustee upon the request of the Holders of not less than
25% in aggregate principal amount of the Outstanding Notes will declare the
principal of, premium, if any, and accrued interest on all of the Notes due and
payable immediately, upon which declaration all amounts payable in respect of
the Notes will be immediately due and payable; if an Event of Default specified
in Section 5.1(h) or 5.1(i) hereof occurs and is continuing, then the principal
or premium, if any, and accrued interest on all of the Notes will automatically
become and be immediately due and payable without any declaration, notice or
other act on the part of the Trustee or any Holder.
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At any time after a declaration of acceleration under this Indenture
has been made, but before a judgment or decree for payment of the money due has
been obtained by the Trustee or Holders of the Notes as permitted as hereinafter
in this Article 5 provided, the Holders of a majority in aggregate principal
amount of the Outstanding Notes, by written notice to the Company, the
Subsidiary Guarantors and the Trustee, may (A) rescind and annul such
declaration and its consequences and (B) on behalf of the holders of all the
Notes, waive any existing Event of Default and its consequences, except a
continuing Event of Default specified in clause 5.1(a) above, if
(a) the Company or any Subsidiary Guarantor has paid or deposited
with the Trustee a sum sufficient to pay,
(i) all overdue interest on all Outstanding Notes,
(ii) all unpaid principal of (and Premium, if any, on) any
Outstanding Notes which have become due otherwise than by such
declaration of acceleration, including any Notes required to have been
purchased on a Change of Control Date or a Net Proceeds Payment Date
pursuant to a Change of Control Offer or a Net Proceeds Offer, as
applicable, and interest thereon at the rate borne by the Notes,
(iii) to the extent that payment of such interest is
lawful, interest on overdue interest and overdue principal at the rate
borne by the securities (without duplication of any amount paid or
deposited pursuant to clauses (i) and (ii) above), and
(iv) all sums paid or advanced by the Trustee under this
Indenture hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel;
(b) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction as certified to the Trustee by the Company;
and
(c) all Events of Default, other than the non-payment of amounts
of principal of (or premium, if any, on) or interest on the Notes that have
become due solely by such declaration of acceleration, have been cured or waived
as provided in this Indenture.
Notwithstanding the foregoing, if an Event of Default specified in
Section 5.1(e) hereof will have occurred and be continuing, such Event of
Default and any consequential acceleration will be automatically rescinded if
the Indebtedness that is the subject of such Event of Default has been repaid,
or if the default relating to such Indebtedness is waived or cured and if such
Indebtedness has been accelerated, then the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness (provided, in each
case, that such repayment, waiver, cure or rescission is effected within a
period of 10 days from the continuation of such default beyond the applicable
grace period or the occurrence of such acceleration), and written notice of such
repayment, or cure or waiver and rescission, as the case may be, will have been
given to the Trustee by the Company and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders or other evidence
satisfactory to the Trustee of such events is provided to the Trustee, within 30
days after any such acceleration in respect of the
51
Notes, and so long as such rescission of any such acceleration of the Notes does
not conflict with any judgment or decree as certified to the Trustee by the
Company.
No such rescission will affect any subsequent default or impair any
right consequent thereon.
5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any installment of interest
or Liquidated Damages, if any, on any Note when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof or with respect to any
Note required to have been purchased by the Company on the Change of Control
Payment Date or the Net Proceeds Payment Date pursuant to a Change of Control
Offer or Net Proceeds Offer, as applicable, the Company will, upon demand of the
Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the
whole amount then due and payable on such Notes for principal (and premium, if
any) and interest, and interest on any overdue principal (and premium, if any)
and, to the extent that payment of such interest will be legally enforceable,
upon any overdue installment of interest, at the rate borne by the Notes, and,
in addition thereto, such further amount as will be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee will deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Notes, their creditors or the Property of the Company,
any Subsidiary Guarantor or of such other obligor, the Trustee (irrespective of
whether the principal of the Notes will then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
will have made
52
any demand on the Company, the Subsidiary Guarantors or such other obligor for
the payment of overdue principal, premium, if any, or interest) will be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents and take any other actions including
participation as a full member of any creditor or other committee as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other Property payable or
deliverable on any such claims and to distribute the same, and any custodian
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee will consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.6 hereof.
Nothing herein contained will be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the Subsidiary Guarantees or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided however, that the Trustee may, on behalf of such Holders,
vote for the election of a trustee in bankruptcy or similar official.
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Notes or
the Subsidiary Guarantees may be prosecuted and enforced by the Trustee without
the possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee will be
brought in its own name and as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article 5 will be
applied in the following order, at the date or dates fixed by the Trustee and,
in the case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid;
FIRST: to the payment of all amounts due the Trustee under Section 6.6
hereof;
53
SECOND: to the payment of the amounts then due and unpaid for principal
of (and premium, if any, on) and interest on the Notes in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Notes for principal (and premium, if any) and interest, respectively; and
THIRD: the balance, if any, to the Company.
5.7 LIMITATION ON SUITS.
No Holder of any Notes will have any right to institute any proceeding,
with respect to this Indenture, or any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Notes will have made written request to the Trustee to institute
proceedings or pursue such remedy in respect of such Event of Default in its own
name as Trustee hereunder and offered to the Trustee reasonable indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with the request;
(c) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
no direction inconsistent, in the opinion of the Trustee, with such written
request has been given to the Trustee during such 60 day period by the Holders
of a majority or more in aggregate principal amount of the Outstanding Notes.
(d) It being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision in this Indenture, the Holder of
any Note will have the right, which is absolute and unconditional, to receive
payment, as provided herein and in such Note of the principal of (and premium if
any, on) and (subject to Article 3 hereof) interest and Liquidated Damages, if
any, on such Note on the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights will not be impaired
without the consent of such Holder.
5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or
54
has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Subsidiary Guarantors, the Trustee and the Holders will be restored
severally and respectively to their former positions hereunder and thereunder
and all rights and remedies of the Trustee and the Holders will continue as
though no such proceeding had been instituted.
5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes described in Article 3 hereof, 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 will, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, will not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy occurring upon any Event of Default will impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 5 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.
5.12 CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes will, have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction will not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders not joining therein.
5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes may, on behalf of the Holders of all the Notes, waive
any existing Default or Event of Default hereunder and its consequences, except
(i) a Default or Event of Default in the payment of principal of, or the
premium, if any, or interest or Liquidated Damages, if any, on the Notes, or
(ii) in respect of a covenant or provision hereof which under Article 9 hereof
cannot be
55
modified or amended without the consent of the Holder of each Outstanding Note
affected thereby.
Upon any such waiver, such Default or Event of Default will cease to
exist for every purpose under this Indenture, but no such waiver will extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon. Any such waiver may (but need not) be given in connection
with a tender offer or exchange offer for the Notes.
5.14 WAIVER OF STAY.
Each of the Company and the Subsidiary Guarantors covenants (to the
extent that each may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension, or usury law or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company or any
Subsidiary Guarantor from paying all or any portion of the principal of
(premium, if any, on) or interest on the Notes as contemplated herein, or which
may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each of the Company and the Subsidiary
Guarantors hereby expressly waives all benefit or advantage of any such law, and
covenants that they will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
6.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations will be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, and will be fully protected in so relying, 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, the Trustee will 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 calculations or other facts stated therein).
56
(iii) No provisions of this Indenture will be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that:
(A) this subsection will not be construed to
limit the effect of Section 6.1(a);
(B) the Trustee will not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;
(C) the Trustee will 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
5.12; and
(D) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
6.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1 hereof:
(a) the Trustee may conclusively rely and will be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein will
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
will deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
57
(e) the Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders will have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee will not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may reasonably see fit, and, if the Trustee
will determine to make such further inquiry or investigation, it will be
entitled to examine, during the business hours and upon reasonable notice the
books, records and premises of the Company, personally or by agent or attorney
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;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee, will not be responsible, for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee will not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee will not be deemed to have notice or knowledge of
any matter (including any Default or Event of Default) unless a Responsible
Officer has actual knowledge thereof or unless written notice thereof is
received by the Trustee at its Corporate Trust Office and such notice references
the Notes generally, the Company or this Indenture;
(j) 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, and each agent, custodian and other Person employed
to act hereunder; and
(k) 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 person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
The Trustee will not be required to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
will have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
58
6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Notes and the notations of
Subsidiary Guarantees thereon, except for the Trustee's certificates of
authentication, will be taken as the statements of the Company or the Subsidiary
Guarantors, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Subsidiary Guarantees or the Notes, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Notes and perform its obligations hereunder,
and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee will not be accountable for
the use or application by the Company of Notes or the proceeds thereof.
6.4 MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Note Registrar or any other agent of
the Company, the Subsidiary Guarantors or of the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject to TIA
Sections 310(b) and 311 in the case of the Trustee, may otherwise deal with the
Company and the Subsidiary Guarantors with the same rights it would have if it
were not the Trustee, Paying Agent, Note Registrar or such other agent.
6.5 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee will be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Subsidiary Guarantor.
6.6 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's willful misconduct,
negligence or bad faith; and
(c) to indemnify each of the Trustee or any predecessor Trustee
and their agents for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than those based
upon, measured by or determined by the income of the
59
Trustee) incurred without willful misconduct, negligence or bad faith on its
part, (i) arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any
claim or liability (whether assisted by the Company, any other holder or any
other person) in connection with the exercise or performance of any of its
powers or duties hereunder or (ii) in connection with enforcing this
indemnification provision.
The obligations of the Company under this Section 6.6 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee will survive the
satisfaction and discharge of this Indenture or any other termination under any
Insolvency or Liquidation Proceeding and the resignation or removal of the
Trustee. As security for the performance of such obligations of the Company, the
Trustee will have a claim and lien prior to the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
payment of principal of (and premium, if any, on) or interest on particular
Notes. Such lien will survive the satisfaction and discharge of this Indenture
or any other termination under any Insolvency or Liquidation Proceeding.
When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in paragraph (h) or (i) of Section
5.1 of this Indenture, such expenses and the compensation for such services are
intended to constitute expenses of administration under any Insolvency or
Liquidation Proceeding.
6.7 CORPORATE TRUSTEE REQUIRED: ELIGIBILITY.
There will at all times be a Trustee hereunder which will be eligible
to act as Trustee, under TIA Section 310(a)(1) and will have a combined capital
and surplus of at least $10,000,000 in the case of the initial Trustee hereunder
and $50,000,000 in the case of any successor Trustee. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 6.7, the combined
capital and surplus of such corporation will be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee will cease to be eligible in accordance
with the provisions of this Section, it will resign immediately in the manner
with which the effect hereinafter specified in this Article 6.
6.8 CONFLICTING INTERESTS.
The Trustee will comply with the provisions of Section 310(b) of Trust
Indenture Act; provided, however, that there will 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.
6.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article 6 will become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.10 hereof.
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(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.10 hereof will not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the Company's expense, any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee will fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Note for at least
six months; or
(ii) the Trustee will cease to be eligible under Section
6.7 hereof and will fail to resign after written request therefor by
the Company or by any Xxxxxx who has been a bona fide Holder of a Note
for at least six months; or
(iii) the Trustee will become incapable of acting or will
be adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property will be appointed or any public officer will take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case,
(1) the Company, by a Board Resolution, may remove the Trustee, or (2)
subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) If the Trustee will resign, be removed or become incapable of
acting, or if a vacancy will occur in the office of Trustee for any cause, the
Company, by a Board Resolution, will promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee will be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed will, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee will have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee. The evidence of such
successorship may, but need not be, evidenced by a supplemental indenture.
(f) The Company will give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner
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provided for in Section 14.5 hereof. Each notice will include the name of the
successor Trustee and the address of its Corporate Trust Office.
6.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder will execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee will become effective and such successor Trustee, without any further
act, deed or conveyance, will become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee will, upon payment of all amounts, due
it under Section 6.6 hereof, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and will duly assign, transfer and deliver to such successor Trustee all money
and other Property held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Company will execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee will accept its appointment unless at the time of
such acceptance such successor Trustee will be qualified and eligible under this
Article 6.
6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee will be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, will be the successor of the Trustee hereunder,
provided such corporation will be otherwise qualified and eligible under this
Article 6, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes will 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 securities; and in
case at that time any of the Notes will not have been authenticated, any
successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates will have the full force which it is anywhere in the
securities or in this Indenture; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Notes in the name of any predecessor Trustee will apply only to its successor or
successors by merger, conversion or consolidation.
6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee will be or become a creditor of the Company (or
any other obligor under the Notes), the Trustee will be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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6.13 NOTICE OF DEFAULTS.
Within 60 days after the occurrence of any Default hereunder, the
Trustee will transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to the Trustee, unless such
Default will have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any, on)
Liquidated Damages, if any, or interest on any Note, the Trustee will be
protected in withholding such notice if and so long as the board of directors of
the Trustee, committee of its board of directors or a committee of Trust
officers determines in good faith that the withholding of such notice is in the
interest of the Holders.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 HOLDERS' LISTS; HOLDER COMMUNICATIONS; DISCLOSURES RESPECTING
HOLDERS.
The Trustee will 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. Neither the Company, any Subsidiary Guarantor nor the Trustee will
be under any responsibility with regard to the accuracy of such list. If the
Trustee is not the Note Registrar, the Company will furnish to the Trustee
semi-annually before each Regular Record Date, and at such other times as the
Trustee may reasonably request in writing, a list, in such form as the Trustee
may reasonably request, as of such date of the names and addresses of the
Holders then known to the Company. The Company and the Trustee will also satisfy
any other requirements imposed upon each of them by TIA Section 312(a).
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the Notes.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company, the Subsidiary Guarantors, the Note Registrar and the Trustee that
none of the Company, the Subsidiary Guarantors, the Note Registrar or the
Trustee, or any agent of any of them, will be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with TIA Section 312, regardless of the source from which such
information was derived, that each of such Persons will have the protection of
TIA Section 312(c) and that the Trustee will not be held accountable by reason
of mailing any material pursuant to a request made under TIA Section 312(b).
7.2 REPORTS BY TRUSTEE.
Within 60 days after March 31st of each year commencing with March 31,
2005, the Trustee will transmit by mail to the Holders, as their names and
addresses appear in the Note Register, a brief report dated as of such in
accordance with and to the extent required under TIA Section 313(a). The Trustee
will also comply with TIA Sections 313(b) and 313(c).
The Company will promptly notify the Trustee in writing if the Notes
become listed on any stock exchange or automatic quotation system and of any
delisting thereof.
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A copy of each Trustee's report, at the time of its mailing to Holders
of Notes, will be mailed to the Company and filed with the Commission and each
stock exchange, if any, on which the Notes are listed.
7.3 REPORTS BY COMPANY.
The Company will:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then the Company will file with the Trustee such
information, documents or reports as required pursuant to Section 10.9 hereof;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(c) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports (without exhibits except to the extent required by TIA
Section 313(c)) required to be filed by the Company pursuant to paragraph (i) or
(ii) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(d) Delivery of such reports, information and documents to the
Trustee pursuant to this Section 7.3 is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OF OR LEASE
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in any single transaction or a series of related
transactions, merge or consolidate with or into any other Person, or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of the Properties of the Company and its Restricted Subsidiaries on a
consolidated basis to any Person or group of Affiliated Persons, and the Company
shall not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
Properties of the Company and its Restricted Subsidiaries on a consolidated
basis to any other Person or group of Affiliated Persons, unless at the time and
after giving effect thereto, either:
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(A) (1) either (a) if the transaction is a merger or
consolidation, the Company will be the surviving Person of such merger or
consolidation, or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which the Properties of
the Company or its Restricted Subsidiaries, as the case may be, are sold,
assigned, conveyed, transferred, leased or otherwise disposed of (any such
surviving Person or transferee Person being the "Surviving Entity") will be a
corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and will, in either case,
expressly assume by a supplemental indenture to this Indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture, and, in each
case, this Indenture will remain in full force and effect;
(2) immediately before and immediately after giving effect to
such transaction or series of transactions on a pro forma basis (and treating
any Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries which becomes the obligation of the Company or any of
its Restricted Subsidiaries in connection with or as a result of such
transaction or transactions as having been incurred at the time of such
transaction or transactions), no Default or Event of Default will have occurred
and be continuing;
(3) except in the case of the consolidation or merger of any
Restricted Subsidiary with or into the Company, immediately after giving effect
to such transaction or transactions on a pro forma basis, the Consolidated Fixed
Charge Coverage Ratio of the Company (or the Surviving Entity if the Company is
not the continuing obligor under this Indenture) is at least equal to the
Consolidated Fixed Charge Coverage Ratio of the Company immediately before such
transaction or transactions;
(4) except in the case of the consolidation or merger of the
Company with or into a Wholly Owned Restricted Subsidiary or of any Restricted
Subsidiary with or into the Company or any Wholly Owned Restricted Subsidiary,
immediately before and immediately after giving effect to such transaction or
transactions on a pro forma basis (on the assumption that the transaction or
transactions occurred on the first day of the period of four full fiscal
quarters for which financial statements are available ending immediately prior
to the consummation of such transaction or transactions, with the appropriate
adjustments with respect to the transaction or transactions being included in
such pro forma calculation), the Company (or the Surviving Entity if the Company
is not the continuing obligor under this Indenture) could Incur $1.00 of
additional Indebtedness (excluding Permitted Indebtedness) under Section 10.11
hereof;
(5) if any of the Properties of the Company or any of its
Restricted Subsidiaries would, upon such transaction or series of related
transactions, become subject to any Lien (other than a Permitted Lien), the
creation or imposition of such Lien will have been in compliance with Section
10.14 hereof;
(6) if the Company is not the continuing obligor under this
Indenture, then any Subsidiary Guarantor, unless it is the Surviving Entity,
will have by supplemental indenture to this indenture confirmed that its
Subsidiary Guarantee of the Notes will apply to the Surviving Entity's
obligations under this Indenture and the Notes; and
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(7) the Company (or the Surviving Entity if the Company is not
the continuing obligor under this Indenture) will have delivered to the Trustee,
in form and substance reasonably satisfactory to the Trustee, (a) an Officer's
Certificate stating that such transaction or series of related transactions and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Indenture and (b) an Opinion of
Counsel stating that the requirements of clause (1) of this paragraph have been
satisfied; or
(B) the transaction is effected in compliance with Section 10.16 ;
provided that all of the Notes then outstanding are paid in full in accordance
with such section.
8.2 SUCCESSOR SUBSTITUTED.
(a) Upon any consolidation of the Company with or merger of the
Company into any other corporation or any sale, assignment, lease, conveyance,
transfer or other disposition of all or substantially all of the Properties of
the Company and its Restricted Subsidiaries on a consolidated basis in
accordance with Section 8.1 hereof, in which the Company is not the continuing
corporation, the Surviving Entity will succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such Surviving Entity had been named as the Company herein,
and in the event of any such sale, assignment, lease, conveyance, transfer or
other disposition, the Company (which term will for this purpose mean the Person
named as the "Company" in the first paragraph of this Indenture or any successor
Person which will theretofore become such in the manner described in Section 8.1
hereof), except in the case of a lease, will be discharged of all obligations
and covenants under this Indenture and the Notes and the Company may be
dissolved and liquidated and such dissolution and liquidation will not cause a
Change of Control under clause (iii) of the definition thereof to occur unless
the merger, or the sale, assignment, lease, conveyance, transfer or other
disposition of all or substantially all of the Properties of the Company and its
Restricted Subsidiaries on a consolidated basis to any Person otherwise results
in a Change of Control.
(b) The Company will not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless:
(i) the resulting, surviving or transferee Person (if not
such Subsidiary Guarantor) shall be a Person organized and existing
under the laws of the jurisdiction under which such Subsidiary
Guarantor was organized or under the laws of the United States of
America or any State thereof or the District of Columbia, and such
Person shall expressly assume, by a Guarantee Agreement, in a form
satisfactory to the Trustee, all the obligations of such Subsidiary
Guarantor, if any, under its Guarantee;
(ii) immediately after giving effect to such transaction
or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee
Person as a result of such transaction as having been issued by such
Person at the time of such transaction), no Default or Event of Default
shall have occurred and be continuing; and
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(iii) the Company delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel (in form and substance
satisfactory to the Trustee), each stating that such consolidation,
merger or transfer and such Guarantee Agreement, if any, complies with
the Indenture; provided, however, that (i) and (iii) above shall not
apply if such transaction or transactions comply with Section 10.16 and
such resulting, surviving or transferee Person is no longer a
subsidiary of the Company.
ARTICLE 9
SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, each of the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee upon Company Request, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
contained herein and in the Notes;
(b) to add any covenant for the benefit of the Holders and does
not adversely affect the interests of any such holders in any material respect
or to surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Sections 6.9
and 6.10 hereof,
(e) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture provided that such action will not adversely affect the
interests of the Holders in any material respect;
(f) to secure the Notes pursuant to the requirements of this
Indenture;
(g) to add any Restricted Subsidiary as an additional Subsidiary
Guarantor as provided in Section 10.12(a) hereof or to evidence the succession
of another Person to any Subsidiary Guarantor pursuant to Section 13.2(b) hereof
and the assumption by any such successor of the covenants and agreements of such
Subsidiary Guarantor contained herein, in the securities and in the Subsidiary
Guarantee of such Subsidiary Guarantor;
(h) to release a Subsidiary Guarantor from its Subsidiary
Guarantee pursuant to Section 13.3 hereof;
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(i) to provide for uncertificated Notes in addition to or in place
of certificated Notes, provided such uncertificated Notes are in registered form
for the purposes of the Internal Revenue Code of 1986, as amended;
(j) provide for the assumption of the Company's obligations to
holders of Notes in the case of a merger or consolidation; or
(k) to comply with the requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes (which consent may, but need
not, be given in connection with any tender offer or exchange offer for the
Notes), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, each of the Subsidiary
Guarantors, when authorized by a Board Resolution, and the Trustee upon Company
Request, may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such supplemental
indenture will, without the consent of the Holder of each outstanding Note
affected thereby:
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of the
principal of, or any installment of interest on, any Note, reduce the premium
payable upon the redemption or repurchase of any Note, change the time at which
any Note may be redeemed or alter any other provisions with respect to the
redemption of the Notes, except as provided below with respect to Sections 10.15
and 10.16 hereof;
(c) reduce the rate of or change the time for payment of interest,
including Defaulted Interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then Outstanding Notes and
a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest or Liquidated Damages,
if any, on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Section 10.15 or 10.16 hereof);
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(h) make any change in the rights of holders to receive payment of
principal and interest as provided in Section 5.8, 5.13, or 10.20 hereof or in
the foregoing amendment and waiver provisions; or
(i) modify any provisions of this Indenture relating to the
relative ranking of the Notes or the Subsidiary Guarantees in a manner adverse
to the Holders thereof.
In addition, any amendment to, or waiver of, the provisions of the
Indenture relating to a Change of Control or the Change of Control Offer that
adversely affects the rights of the holders of the Notes will require the
consent of the holders of at least 75% in aggregate principal amount of Notes
then outstanding.
It will not be necessary for any Act of the Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
will be sufficient if such Act will approve the substance thereof.
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article 9 or the modifications thereby
of the trusts created by this Indenture, the Trustee will be entitled to
receive, and will be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
will not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article 9,
this Indenture will be modified in accordance therewith, and such supplemental
indenture will form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder will be
bound thereby.
9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article 9 will
conform to the requirements of the Trust Indenture Act as then in effect.
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 9 may, and will if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company will so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company, with the notations of Subsidiary Guarantees thereon executed by the
Subsidiary Guarantors, and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
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9.7 NOTICE OF SUPPLEMENTAL INDENTURES AND WAIVERS.
Promptly after (i) the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2 hereof or (ii)
a waiver under Section 5.13 or 10.20 hereof becomes effective, the Company will
give notice thereof to the Holders of each Outstanding Note affected, in the
manner provided for in Section 14.5 hereof, setting forth in general terms the
substance of such supplemental indenture or waiver, as the case may be.
ARTICLE 10
COVENANTS
10.1 PAYMENT OF SECURITIES.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of (and premium, if any, on) and
interest and Liquidated Damages, if any, on the Notes in The City of New York,
New York in accordance with the terms of the Notes and this Indenture.
10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes, the Subsidiary
Guarantees and this Indenture may be served. The Corporate Trust Office of the
Trustee will be such office or agency of the Company, unless the Company will
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such Office or agency. If at any time the Company
will fail to maintain any such required office or agency or will 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 presentation,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company will at any time act as its own Paying Agent, it will,
on or before 11:00 a.m. Eastern Time, on each due date of the principal of (and
premium, if any, on) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sum
will be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company will have one or more Paying Agents for the Notes,
it will on or before 11:00 a.m. Eastern Time, on each due date of the principal
of (and premium, if any, on), or interest on, any Notes, deposit with a Paying
Agent immediately available funds in a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such funds to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent will
agree with the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any), interest or Liquidated Damages, if any, on Notes in trust
for the benefit of the Persons entitled thereto until such sums will be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal (and
premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such sums.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any, on) or interest
on any Note and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable will be paid to the
Company on Company Request, or (if then held by the Company) will be discharged
from such trust; and the Holder of such Note will thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified herein, which will not be less than 30 days from
the date of each publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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10.4 CORPORATE EXISTENCE.
Except as expressly permitted by Article 8 hereof, Section 10.17 hereof
or other provisions of this Indenture, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company will not be required
to preserve any such existence of its Restricted Subsidiaries, rights or
franchises, if the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole,
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
10.5 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same will become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or Property of the Company or any
Restricted Subsidiary and (ii) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a Lien upon the Property of the
Company or any Restricted Subsidiary; provided, however, that the Company will
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP.
10.6 MAINTENANCE OF PROPERTIES.
The Company will cause all material Properties owned by the Company or
any Restricted Subsidiary and used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted),
all as in the judgment of the Company or such Restricted Subsidiary may be
necessary so that its or its Restricted Subsidiary's business may be properly
and advantageously conducted at all times; provided, however, that nothing in
this Section will prevent the Company or any Restricted Subsidiary from
discontinuing the maintenance of any of such Properties if such discontinuance
is, in the judgment of the Company or such Restricted Subsidiary, as the case
may be, desirable in the conduct of the business of the Company or such
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders. Notwithstanding the foregoing, nothing contained in this Section 10.6
will limit or impair in any way the right of the Company and its Restricted
Subsidiaries to sell, divest and otherwise to engage in transactions that are
otherwise permitted by this Indenture.
10.7 INSURANCE
The Company will at all times keep all of its, and cause its Restricted
Subsidiaries to keep their, Properties which are of an insurable nature insured
with insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character and in a similar location is
usually so insured by corporations similarly situated and owning like
Properties.
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The Company or any Restricted Subsidiary may adopt such other plan or
method of protection, in lieu of or supplemental to insurance with insurers,
whether by the establishment of an insurance fund or reserve to be held and
applied to make good losses from casualties, or otherwise, conforming to the
systems of self-insurance maintained by corporations similarly situated and in a
similar location and owning like Properties, as may be determined by the Board
of Directors of the Company or such Restricted Subsidiary.
10.8 STATEMENT BY OFFICER AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company and within 45 days of the end of each
of the first, second and third quarters of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company and
its Restricted Subsidiaries during the preceding fiscal quarter or fiscal year,
as applicable, has been made under the supervision of the signing Officers with
a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of such Officer's
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and no Default or Event of Default has
occurred and is continuing (or, if a Default or Event of Default will have
occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge and what action the Company is taking or proposes to
take with respect thereto). Such Officers' Certificate will comply with TIA
Section 314(a)(4). For purposes of this Section 10.8(a), such compliance will be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company will, so long as any of the securities are
outstanding, deliver to the Trustee promptly upon any of its Officers becoming
aware of any Default or Event of Default an Officers' Certificate specifying
such Default or Event of Default and what action the Company proposes to take
with respect thereto.
10.9 REPORTS.
Whether required by the rules and regulations of the Commission, so
long as any Notes are outstanding, the Company will furnish to the holders of
Notes or cause the Trustee to furnish to the holders of Notes, within the time
periods specified in the Commission's rules and regulations: (1) all quarterly
and annual reports that would be required to be filed with the Commission on
Forms 10-Q and 10-K if we were required to file such reports; and (2) all
current reports that we would be required to file with the Commission on Form
8-K if we were required to file such reports.
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K will include a report on our consolidated
financial statements by a firm of certified independent accountants. In
addition, following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, the Company will file a copy of each of the
reports referred to in clauses (1) and (2) above with the Commission via the
Electronic Data Gathering and Retrieval system ("XXXXX") for public availability
within the time periods specified in the rules and
73
regulations applicable to such reports (unless the Commission will not accept
such a filing) and will post the reports on the Company's website within those
time periods. The filing of such reports with the Commission via XXXXX will
satisfy the Company's obligations to furnish such information to the Holders of
the Notes.
If, at any time, the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, it will nevertheless
continue to file the reports specified in the preceding paragraphs of this
covenant with the Commission within the time periods specified above unless the
Commission will not accept such a filing. The Company will not take any action
for the purpose of causing the Commission not to accept any such filings. If,
notwithstanding the foregoing, the Commission will not accept the Company's
filings for any reason, it will post the reports referred to in the preceding
paragraphs on its website within the time periods that would apply if the
Company were required to file those reports with the Commission.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraphs will include a reasonably detailed presentation, 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," of the Company's financial condition and results of operations and
those of the Company's Restricted Subsidiaries separate from the financial
condition and results of operations of the Company's Unrestricted Subsidiaries.
In addition, the Company agrees that, for so long as any Notes remain
outstanding, if at any time it is not required to file with the Commission the
reports required by the preceding paragraphs, the Company will furnish to the
holders of Notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
10.10 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, take the following actions:
(i) declare or pay any dividend or make any distribution
on account of the Company's Capital Stock (other than dividends or
distributions payable solely in shares of Qualified Capital Stock of
the Company or in options, warrants or other rights to purchase
Qualified Capital Stock of the Company);
(ii) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any Affiliate thereof (other
than any Wholly Owned Restricted Subsidiary) or any options, warrants
or other rights to acquire such Capital Stock other than the purchase,
by the Company of options to acquire Capital Stock from one or more
employees of the Company in connection with such employee's termination
of employment, provided that the amount paid by the Company with
respect to all such purchases does not exceed $500,000 in the aggregate
for so long as any Note remains outstanding and provided further that,
in the case of such options to acquire Capital
74
Stock, the market price of the Capital Stock for which such options are
exercisable is at least 40% lower than the exercise price of such
options;
(iii) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, scheduled sinking fund payment or
maturity, any Subordinated Indebtedness, except (1) pursuant to a Net
Proceeds Deficiency pursuant to Section 10.16 hereof or (2) upon a
Change of Control to the extent (and only to the extent) required by
the indenture or other agreement or instrument pursuant to which such
Subordinated Indebtedness was issued, provided that the Company is then
in compliance with its obligations under Section 10.15 hereof or (3)
with respect to the 2001 Notes;
(iv) declare or pay any dividend on, or make any
distribution to the holders of, any shares of Capital Stock of any
Restricted Subsidiary (other than payments made pro rata to all holders
of such Capital Stock) that is not a Wholly Owned Restricted Subsidiary
or purchase, redeem or otherwise acquire or retire for value any
Capital Stock of any Restricted Subsidiary or any options, warrants or
other rights to acquire any such Capital Stock (other than with respect
to any such Capital Stock held by the Company or any Wholly Owned
Restricted Subsidiary of the Company); or
(v) make any Investment (other than any Permitted
Investment);
(such payments or other actions described in (but not excluded from) clauses (i)
through (v) are collectively referred to as "Restricted Payments"), unless at
the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, will be the amount
determined by the Board of Directors of the Company, and evidenced by a Board
Resolution): (1) no Default or Event of Default will have occurred and be
continuing, (2) the Company could Incur $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) in accordance with Section 10.12(a) hereof,
and (3) the aggregate amount of such Restricted Payment and all other Restricted
Payments declared or made after the date of the Indenture will not exceed the
sum (without duplication) of the following:
(A) 50% of the sum of (1) Consolidated Net
Income of the Company plus (2) non-cash asset impairment
charges determined pursuant to GAAP (excluding any such
non-cash charges to the extent that it represents an accrual
of or reserve for cash expenses in any future period) in each
case accrued during the period beginning on April 1, 2004 and
ending on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed Restricted Payment
for which internal financial statements are available (or, if
such aggregate Consolidated Net Income shall be a loss, minus
100% of such loss), plus
(B) 100% of the aggregate Net Cash Proceeds
received by the Company after the date of the Indenture by the
Company as capital contributions to the Company (other than
from any Restricted Subsidiary), plus
(C) 100% of the aggregate Net Cash Proceeds
received after the date of the Indenture by the Company from
the issuance or sale (other than to any of
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its Restricted Subsidiaries) of shares of Qualified Capital
Stock of the Company or any options, warrants or rights to
purchase such shares of Qualified Capital Stock of the
Company, plus
(D) 100% of the aggregate Net Cash Proceeds
received after the date of the Indenture by the Company (other
than from any of its Restricted Subsidiaries) upon the
exercise of any options, warrants or rights to purchase shares
of Qualified Capital Stock of the Company, plus
(E) 100% of the aggregate Net Cash Proceeds
received after the date of the Indenture by the Company from
the issuance or sale (other than to any of its Restricted
Subsidiaries) of debt securities or shares of Redeemable
Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Company, together with the
aggregate net cash received by the Company at the time of such
conversion or exchange, plus
(F) to the extent not otherwise included in the
Company's Consolidated Net Income, an amount equal to the net
reduction in any investment made by the Company and its
Restricted Subsidiaries subsequent to the date of the
Indenture in any Person resulting from (i) payments of
interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers or distributions of property, in
each case to the Company or any Restricted Subsidiary from any
Person, and in an amount not to exceed the book value of such
investment previously made in such Person that was treated as
Restricted Payments, or (ii) the designation of any
Unrestricted Subsidiary as a Restricted Subsidiary, in each
case in an amount not to exceed the lesser of (x) the book
value of such investment previously made in such Unrestricted
Subsidiary that was treated as Restricted Payments, and (y)
the fair market value of such Unrestricted Subsidiary, plus
(G) $10,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its
Restricted Subsidiaries may take the following actions so long as (in the case
of clauses (ii), (iii), (iv) and (v) below no Default or Event of Default will
have occurred and be continuing):
(i) the payment of any dividend on any Capital Stock of
the Company or any Restricted Subsidiary within 60 days after the date
of declaration thereof, if at such declaration date such declaration
complied with the provisions of paragraph (a) above (and such payment
will be deemed to have been paid on such date of declaration for
purposes of any calculation required by the provisions of paragraph (a)
above); provided, however, that such dividend shall be included in the
amount of Restricted Payments;
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the Company
or any Restricted Subsidiary, in exchange for, or out of the aggregate
net cash proceeds of, a substantially concurrent issue and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital Stock
of the
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Company (provided, however, that (1) such acquisition of Capital Stock
shall be excluded in the calculation of Restricted Payments and (2) the
Net Cash Proceeds from such sale shall be included from the calculation
of amounts under clause (3)(C) above);
(iii) the repurchase, redemption, repayment, defeasance or
other acquisition or retirement for value of any Indebtedness (other
than Redeemable Capital Stock) in exchange for or out of the aggregate
net cash proceeds of, a substantially concurrent issue and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital Stock
of the Company;
(iv) the purchase, redemption, repayment, defeasance or
other acquisition or retirement for value of Indebtedness in exchange
for, or out of the aggregate net cash proceeds of, a substantially
concurrent incurrence (other than to a Restricted Subsidiary) of,
Indebtedness so long as (1) the principal amount of such new
Indebtedness does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) of the Indebtedness being so purchased, redeemed,
repaid, defeased, acquired or retired, plus the amount of any premium
required to be paid in connection with such refinancing pursuant to the
terms of the Indebtedness refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus the amount of expenses of the Company incurred in
connection with such refinancing, (2) if such Indebtedness so
purchased, redeemed, repaid, defeased, acquired or retired was
subordinated to the Notes, such new Indebtedness is subordinate to the
Notes at least to the same extent, (3) such new Indebtedness has an
Average Life to Stated Maturity that is longer than the Average Life to
Stated Maturity of the Notes and such new Indebtedness has a Stated
Maturity for its final scheduled principal payment that is at least 91
days later than the Stated Maturity for the final scheduled principal
payment of the Notes; and
(v) the purchase, redemption, repayment, or other
acquisition or retirement for value of the 2001 Notes and Notes offered
pursuant to this Indenture.
The actions described in clauses (i) and (iii) of this paragraph (b) will be
Restricted Payments that will be permitted to be taken in accordance with this
paragraph (b) but will reduce the amount that would otherwise be available for
Restricted Payments under clause (3) of paragraph (a) (provided that any
dividend paid pursuant to clause (i) of this paragraph (b) will reduce the
amount that would otherwise be available under clause (3) of paragraph (a) when
declared, but not also when subsequently paid pursuant to such clause (i)), and
the actions described in clauses (ii), (iv) and (v) of this paragraph (b) will
be Restricted Payments that will be permitted to be taken in accordance with
this paragraph and will not reduce the amount that would otherwise be available
for Restricted Payments under clause (3) of paragraph (a). The amount of all
Restricted Payments (other than cash) shall be the fair market value on the date
of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. The fair market value of any assets
or securities that are required to be valued by the Section of the Indenture
limiting Restricted Payments shall be determined by the Board of Directors whose
77
resolution with respect thereto shall be delivered to the Trustee. The Board of
Directors' determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $10,000,000. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payments is permitted and setting forth
the basis upon which the required calculations were computed, together with a
copy of any fairness opinion or appraisal required hereby.
(c) In computing Consolidated Net Income of the Company under
paragraph (a) above, (i) the Company will use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (ii) the Company will be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment would in the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment will be deemed to have been made in compliance with this
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Net Income of the Company
for any period.
10.11 LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK AND REDEEMABLE CAPITAL STOCK.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume, guarantee or otherwise become directly
or indirectly liable for the payment of (collectively, "Incur") any Indebtedness
(including any Acquired Indebtedness), other than Permitted Indebtedness, and
that the Company will not issue any Redeemable Capital Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of Preferred Stock or
Redeemable Capital Stock unless (1) at the time of such event and after giving
effect thereto and the receipt and application of the funds therefrom the
Company's Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period, would have been
at least equal to 2.5 to 1.0 and (2) no Default or Event of Default shall have
occurred and be continuing at the time such Indebtedness is Incurred or such
Preferred Stock or Redeemable Capital Stock is issued or would occur as a
consequence of the Incurrence of the Indebtedness or the issuance of such
Preferred Stock or Redeemable Capital Stock.
The amount of any guarantees by the Company or any Restricted
Subsidiary of any Indebtedness of the Company or one or more Restricted
Subsidiaries will not be deemed to be outstanding or Incurred for purposes of
this Section 10.11 hereof in addition to the amount of Indebtedness which it
guarantees.
10.12 LIMITATION ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED
SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary that is
not a Subsidiary Guarantor to guarantee the payment of any Indebtedness of the
Company unless: (a) such
78
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Subsidiary Guarantee of the Notes by
such Restricted Subsidiary on a senior unsecured basis; (b) such Restricted
subsidiary waives and agrees not to claim or take the benefit or advantage of,
in any manner whatsoever, any rights of reimbursement, indemnity or subrogation
or any other rights against the Company or any other Restricted Subsidiary as a
result of any payment by such Restricted Subsidiary under its Subsidiary
Guarantee until such time as the obligations guaranteed thereby are paid in
full; and (c) such Restricted Subsidiary will deliver to the Trustee an Opinion
of Counsel to the effect that such Subsidiary Guarantee has been duly executed
and authorized and constitutes a valid, binding and enforceable obligation of
such Restricted Subsidiary, except insofar as enforcement thereof may be limited
by bankruptcy, insolvency or similar laws (including, without limitation, all
laws relating to fraudulent transfers) and except insofar as enforcement thereof
is subject to general principles of equity; provided that this paragraph (a)
will not be applicable to any guarantee of any Restricted Subsidiary that (x)
existed at the time such Person became a Restricted Subsidiary of the Company
and (y) was not Incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary of the Company.
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Subsidiary Guarantee Incurred by a Restricted Subsidiary pursuant
to this Section 10.12 will provide by its terms that it will be automatically
and unconditionally released and discharged upon the terms and conditions set
forth in Section 13.3 hereof.
10.13 LIMITATION ON ISSUANCE, SALE AND OWNERSHIP OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES.
The Company (i) will not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Company or a Restricted Subsidiary) and (ii)
will not permit any Person (other than the Company or a Restricted Subsidiary)
to own any Capital Stock of any Restricted Subsidiary, except, in each case, for
(a) directors' qualifying shares, (b) Capital Stock of a Restricted Subsidiary
organized in a foreign jurisdiction required as a legal matter to be issued to,
or owned by, the government of such foreign jurisdiction or individual or
corporate citizens of such foreign jurisdiction in order for such Restricted
Subsidiary to transact business in such foreign jurisdiction, (c) a sale of
Capital Stock of a Restricted Subsidiary effected in accordance with Sections
10.10 and 10.16 hereof and only if, immediately after giving effect to such
sale, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary and any Investment in such Person remaining after giving effect to
such sale would have been permitted under Sections 10.10 and 10.16 hereof, (d)
the issuance of Capital Stock by a Restricted Subsidiary to a Person other than
the Company or a Restricted Subsidiary which issuance was made in accordance
with Sections 10.10 and 10.16 hereof and only if, immediately after giving
effect to such issuance, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after giving
effect to such sale would have been permitted under Sections 10.10 and 10.16
hereof, (e) the Capital Stock of a Restricted Subsidiary owned by a Person at
the time such Restricted Subsidiary became a Restricted Subsidiary or acquired
by such Person in connection with the formation of the Restricted Subsidiary;
provided, however, that any Capital Stock retained by the Company or a
Restricted Subsidiary in the case of clause (c), (d) or (e) will be treated as
an Investment for purposes of
79
Section 10.10, if the amount of such Capital Stock represents less than a
majority of the Voting Stock of such Restricted Subsidiary.
10.14 LIMITATION ON LIENS.
The Company will not and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind, except for Permitted Liens, upon any of their respective Properties,
whether owned prior to or acquired after the date of the 2001 Indenture, or any
income or profits therefrom to secure any Subordinated Indebtedness, unless
prior to or contemporaneously therewith the Notes are directly secured equally
and ratably, provided that if such secured Indebtedness is Subordinated
Indebtedness, the Lien securing such Subordinated Indebtedness will be
subordinate and junior to the Lien securing the Notes at least to the same
extent as such Subordinated Indebtedness is subordinated to the Notes.
10.15 PURCHASE OF SECURITIES UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral part thereof) of such holder's Notes, pursuant
to the offer described in Section 10.15(b) hereof (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Liquidated Damages, if any
(the "Change of Control Purchase Price"), to the date of purchase (the "Change
of Control Payment Date"). 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 at the same or a higher purchase price, at the same times and
otherwise in substantial compliance with the requirements applicable to a Change
of Control Offer made by the Company and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
(b) Within 30 calendar days after the date of any Change of
Control, the Company or the Trustee at the request and the expense of the
Company, will send to each Holder, in the manner provided in Section 14.5 a
notice (the "Change of Control Notice") prepared by the Company describing the
transaction or transactions that constitute the Change of Control and stating:
(i) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 10.15, and that
all Notes that are timely tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the Change
of Control Payment Date, which date will be a Business Day no earlier
than 30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Notes or
portions thereof accepted for payment
80
pursuant to the Change of Control Offer will cease to accrue interest
from and after the Change of Control Payment Date;
(v) that any Holder electing to have any Notes or
portions thereof purchased pursuant to a Change of Control Offer will
be required to surrender such Notes, with the form to elect purchase by
the Company pursuant to this Section 10.15 completed, to the Paying
Agent at the address specified in the notice, prior to the close of
business on the third Business Day preceding the Change of Control
Payment Date;
(vi) that any Holder will be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase and a statement that such Xxxxxx is withdrawing such Xxxxxx's
election to have such Notes or portions thereof purchased pursuant to
the Change of Control Offer;
(vii) that any Holder electing to have Notes purchased
pursuant to the Change of Control Offer must specify the principal
amount that is being tendered for purchase, which principal amount must
be $1,000 or an integral multiple thereof;
(viii) if Definitive Notes have been issued pursuant to
Section 3.5, that any Holder of Definitive Notes whose Definitive Notes
are being purchased only in part will be issued new Definitive Notes
equal in principal amount to the unpurchased portion of the Definitive
Notes surrendered, which unpurchased portion will be equal in principal
amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder
to tender Notes and to have such Notes purchased pursuant to this
Section 10.15.
(c) On the Change of Control Payment Date, the Company will, to
the extent lawful: (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer; (ii) irrevocably deposit with
the Paying Agent, by 11:00 a.m. Eastern Time, on such date, in immediately
available funds, an amount equal to the Change of Control Purchase Price in
respect of all Notes or portions thereof so accepted; 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 will promptly mail, in the
manner provided in Section 14.5, to each Holder of Notes or portions thereof so
accepted for payment the Change of Control Purchase Price for such Notes or
portions thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date. For purposes of this Section 10.15, the Trustee will act as the
Paying Agent.
(d) Upon surrender and cancellation of a Definitive Note that is
purchased in part pursuant to the Change of Control Offer, the Company will
promptly issue and the Trustee will authenticate and mail (or cause to be
transferred by book entry) to the surrendering Holder of such Definitive Note a
new Definitive Note equal in principal amount to any unpurchased
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portion of the surrendered Definitive Note, if any; provided that each such new
Definitive Note will be in a principal amount of $1,000 or an integral multiple
thereof.
(e) The Company will comply with 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 the event that a Change of Control occurs and
the Company is required to purchase Notes as described in this Section 10.15. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions relating to the Change of Control Offer, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 10.15 by virtue
thereof.
10.16 LIMITATION OF ASSET SALES.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless: (i) the
Company or such Restricted Subsidiary, as the case may be, receives aggregate
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the Properties sold or otherwise disposed of pursuant to the Asset Sale
(as determined in good faith by the Board of Directors of the Company and
evidenced by a Board Resolution or, solely with respect to Asset Sales in an
amount not to exceed $5,000,000, as determined in good faith by the chief
executive officer of the Company); (ii) at least 80% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, in
respect of such Asset Sale consists of cash, Cash Equivalents or properties used
in the Oil and Gas Business of the Company and its Restricted Subsidiaries; and
(iii) the Company delivers to the Trustee an Officers' Certificate certifying
that such Asset Sale complies with clauses (i) and (ii) of this Section
10.16(a). The amount (without duplication) of any unsubordinated Indebtedness of
the Company or any Restricted Subsidiary that is expressly assumed by the
transferee in such Asset Sale and with respect to which the Company or such
Restricted Subsidiary, as the case may be, is unconditionally released by the
holder of such Indebtedness, will be deemed to be cash or Cash Equivalents for
purposes of clause (ii) and will also be deemed to constitute a repayment of,
and a permanent reduction in, the amount of such Indebtedness for purposes of
the following paragraph.
(b) If the Company or any Restricted Subsidiary consummates an
Asset Sale, the Company or such Restricted Subsidiary may either, no more than
365 days after such Asset Sale, (i) apply all or any of the Net Cash Proceeds
therefrom to repay unsubordinated Indebtedness of the Company or any Restricted
Subsidiary, provided, however, in each case, that the related loan commitment
(if any) is thereby permanently reduced by the amount of such unsubordinated
Indebtedness so repaid, or (ii) no more than 365 days before or after such Asset
Sale, invest all or any part of the Net Cash Proceeds thereof in properties and
assets that will be used in the Oil and Gas Business of the Company or its
Restricted Subsidiaries, as the case may be, provided, however, that, if any
such property or asset is acquired prior to the occurrence of such Asset Sale,
to the extent amounts were drawn under any Credit Facility to pay for such
acquisition, contemporaneously with the consummation of the Asset Sale the
Company shall use the entire Net Cash Proceeds of such Asset Sale to repay (but
not permanently reduce), to the extent of the amount borrowed, such Credit
Facility. The amount of such Net Cash Proceeds not applied or invested as
provided in this paragraph (after the period specified in this paragraph) will
constitute "Excess Proceeds."
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(c) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000 (the "Trigger Date"), the Company will make an offer to purchase,
from all Holders of the Notes, an aggregate principal amount of Notes equal to
such Excess Proceeds as follows:
(i) Not later than the 30th day following the Trigger
Date, the Company shall give to the Trustee in the manner provided in
Section 14.4 hereof and each Holder of the Notes in the manner provided
in Section 14.5 hereof, a notice (a "Purchase Notice") offering to
purchase (a "Net Proceeds Offer") from all Holders of the Notes the
maximum principal amount (expressed as a multiple of $1,000) of Notes
that may be purchased out of an amount (the "Payment Amount") equal to
such Excess Proceeds (subject to proration in the event such amount is
less than the aggregate Offered Price (as hereinafter defined) of all
Notes tendered.
(ii) The offer price for the Notes will be payable in cash
in an amount equal to 100% of the aggregate principal amount of the
Notes tendered pursuant to a Net Proceeds Offer, plus accrued and
unpaid interest and Liquidated Damages thereon to the date such Net
Proceeds Offer is consummated (the "Offered Price"), in accordance with
paragraph (iv) of this Section. To the extent that the aggregate
Offered Price of the Notes tendered pursuant to a Net Proceeds Offer is
less than the Payment Amount relating thereto (such shortfall
constituting a "Net Proceeds Deficiency"), the Company may use such Net
Proceeds Deficiency, or a portion thereof, for general corporate
purposes, subject to the limitations of Section 10.10 hereof.
(iii) If the aggregate Offered Price of Notes validly
tendered and not withdrawn by Holders thereof exceeds the Payment
Amount, Notes to be purchased will be selected on a pro rata basis by
the Trustee based on the aggregate principal amount of Notes so
tendered. Upon completion of a Net Proceeds Offer, the amount of Excess
Proceeds will be reset to zero.
(iv) The Purchase Notice will set forth a purchase date
(the "Net Proceeds Payment Date"), which will be on a Business Day no
earlier than 30 days nor later than 60 days from the Trigger Date. The
Purchase Notice will also state (1) that a Trigger Date with respect to
one or more Asset Sales has occurred and that such Holder has the right
to require the Company to repurchase such Holder's Notes at the Offered
Price subject to the limitations described in the foregoing paragraph
(iii), (2) any information regarding such Net Proceeds Offer required
to be furnished pursuant to Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, (3) that any Note, or
portion thereof, not tendered or accepted for payment will continue to
accrue interest, (4) that, unless the Company defaults in depositing
money with the Paying Agent in accordance with the last paragraph of
clause (iv) of this Section 10.16, or payment is otherwise prevented,
any Note, or portion thereof, accepted for payment pursuant to the Net
Proceeds Offer will cease to accrue interest after the Net Proceeds
Payment Date, and (5) the instructions a Holder must follow in order to
have his Notes repurchased in accordance with paragraph (iv) of this
Section.
(d) Holders electing to have Notes purchased will be required to
surrender such Notes to the Paying Agent at the address specified in the
Purchase Notice prior to the close of business
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on the third Business Day prior to the Net Proceeds Payment Date. Holders will
be entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day prior to the Net Proceeds
Payment Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes delivered for purchase by the Holder
as to which his election is to be withdrawn and a statement that such Xxxxxx is
withdrawing his election to have such Notes purchased. Holders of Definitive
Notes whose Notes are purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion will be equal to $1,000 or an integral multiple thereof.
On the Net Proceeds Payment Date, the Company will (1) accept for
payment Notes or portions thereof validly tendered pursuant to a Net Proceeds
Offer in an aggregate principal amount equal to the Payment Amount or such
lesser amount of Notes as has been tendered, (2) irrevocably deposit with the
Paying Agent by 11:00 a.m. Eastern Time, immediately available funds sufficient
to pay the purchase price of all Notes or portions thereof so tendered in an
aggregate principal amount equal to the Payment Amount or such lesser amount and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted. The
Paying Agent will promptly send, in the manner provided in Section 14.5, to
Holders of the Notes so accepted payment in an amount equal to the purchase
price, and the Company will execute and the Trustee will authenticate and mail
or make available for delivery to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note which any such Holder did not
surrender for purchase. Any Notes not so accepted will be promptly mailed or
delivered to the Holder thereof. The Company will announce the results of a Net
Proceeds Offer on or as soon as practicable after the Net Proceeds Payment Date.
For purposes of this Section 10.16, the Trustee will act as the Paying Agent.
(e) The Company will not and will not permit any Restricted
Subsidiary to enter into or suffer to exist any agreement that would place any
restriction of any kind (other than pursuant to law or regulation) on the right
of the Company to make a Net Proceeds Offer following any Asset Sale. The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder, if applicable, in the
event that an Asset Sale occurs and the Company is required to purchase Notes as
described in this Section 10.16. To the extent that the provisions of any
securities laws or regulations conflict with the provisions relating to the Net
Proceeds Offer, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
Section 10.16 by virtue thereof.
10.17 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of Property or services) with any
Affiliate of the Company (other than the Company or a Restricted Subsidiary)
unless: (i) such transaction or series of related transactions is on terms that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's length
dealings with a Person that is not an Affiliate, (ii) with respect to a
transaction or series of related transactions involving payments in excess of
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$1,000,000 in the aggregate, the Company delivers an Officers' Certificate to
the Trustee certifying that such transaction complies with clause (i) above,
(iii) with respect to a transaction or series of transactions involving payments
in excess of $5,000,000 but less than $15,000,000 in the aggregate, the Company
delivers an Officers' Certificate to the Trustee certifying that (a) such
transaction or series of related transactions complies with clause (i) above and
(b) such transaction or series of related transactions will have been approved
by a majority of the Disinterested Directors of the Company, and (iv) with
respect to a transaction or series of transactions involving payments of
$15,000,000 or more in the aggregate, the Company delivers an Officers'
Certificate to the Trustee certifying that (a) such transaction or series of
related transactions complies with clause (i) above, (b) such transaction or
series of related transactions will have been approved by a majority of the
Disinterested Directors of the Company and (c) the Company will have received
the written opinion of an investment banking firm nationally recognized in the
United States that such transaction or series of transactions is fair, from a
financial point of view, to the Company or such Restricted Subsidiary; provided,
however, that the foregoing restriction will not apply to: (1) transactions
between or among the Company and/or any of its Restricted Subsidiaries, (2) the
payment of reasonable and customary regular fees to directors of the Company or
any of its Restricted Subsidiaries who are not employees of the Company or any
Affiliate, (3) payments made under the terms of the Company's employee
compensation and other benefit arrangements, (4) indemnities of officers and
directors of the Company or any Subsidiary consistent with such Person's bylaws
and applicable statutory provisions, or (5) Restricted Payments that are
permitted by the provisions of the Indenture.
10.18 LIMITATION ON SALE-LEASEBACK TRANSACTIONS
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any sale-leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby the Company or a
Restricted Subsidiary sells or transfers such assets or properties and then or
thereafter leases such assets or properties or any part hereof or any other
assets or properties that the Company or such Restricted Subsidiary, as the case
may be, intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred (each, a "Sale-Leaseback Transaction").
The foregoing restriction does not apply to any Sale-Leaseback Transaction if
(i) the Company or such Restricted Subsidiary, as applicable, would be entitled
to (a) Incur Indebtedness in an amount equal to the Attributable Indebtedness
relating to such Sale-Leaseback Transaction under the Consolidated Fixed Charge
Coverage Ratio test in Section 10.11 and (b) create a Lien on such Property to
secure such Attributable Indebtedness pursuant to Section 10.14;
(ii) the gross proceeds of that sale and leaseback transaction are
at least equal to the fair market value, as determined in good faith by the
Board of Directors and set forth in Board Resolution delivered to the Trustee,
of the asset or property that is the subject of such Sale-Leaseback Transaction;
and
(iii) the transfer of assets in that Sale-Leaseback Transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, the covenant described under Section 10.16.
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10.19 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to: (i) pay dividends, in cash or otherwise, or
make any other distributions on or in respect of its Capital Stock to the
Company or any other Restricted Subsidiary; (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary; (iii) make an investment in the
Company or any other Restricted Subsidiary; or (iv) transfer any of its
Properties to the Company or any other Restricted Subsidiary, except in each
instance for such encumbrances or restrictions pursuant to: (a) the Indenture,
the Notes, the 2004 Credit Facility, the Second Lien Term Loan Agreement or any
other Credit Facility, provided, however, that, in the case of encumbrances or
restrictions pursuant to any Credit Facility other than the 2004 Credit Facility
or the Second Lien Term Loan Agreement, the encumbrances or restrictions under
such Credit Facility shall not be materially more disadvantageous to the holders
of the Notes than the encumbrances or restrictions under the 2004 Credit
Facility or the Second Lien Term Loan Agreement; (b) any agreement in effect as
of the date hereof; (c) any agreement or other instrument in existence at the
time of such acquisition (but not created in contemplation thereof) of a Person
acquired by the Company or any Restricted Subsidiary, which encumbrance or
restriction is not applicable to any other Person, or the Properties of any
other Person, other than the Person or the Properties of the Person, so
acquired; (d) customary restrictions in leases and licenses relating solely to
the Property covered thereby and entered into in the ordinary course of
business; (e) any agreement for the sale or other disposition of a Restricted
Subsidiary or its assets that restricts transactions by the Restricted
Subsidiary pending its disposition, provided that any encumbrances or
restrictions pursuant to such agreement by their terms lapse no later than 180
days after the date of such agreement; (f) provisions in joint venture or other
similar agreements entered into in the ordinary course of business that restrict
the right of participants to dispose or distribute assets as properties owned by
the joint venture or other entity; (g) provisions in agreements entered into
with respect to Liens that limit our ability or the ability of any Restricted
Subsidiary to dispose of assets subject to the Liens; or (h) any agreement that
extends, renews, refinances or replaces the agreements containing the
restrictions in the foregoing clauses (a) through (g); provided that in the case
of such agreements that extend, renew, refinance or replace agreements so
described, the terms and conditions of any such restrictions are no less
favorable to the holders of the Notes than those under or pursuant to the
agreement evidencing such Indebtedness so extended, renewed, refinanced or
replaced.
10.20 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5 - 10.12, 10.14, 10.15,
10.17, 10.18, and 10.19 hereof if, before or after the time for such compliance,
the Holders of at least a majority in aggregate principal amount of the
Outstanding Notes and the Subsidiary Guarantors, by Act of such Holders and
written agreement of the Subsidiary Guarantors, waive such compliance in such
instance with such term, provision or condition, but no such waiver will extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver will
86
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition will remain in full force
and effect.
10.21 LIMITATION ON RESTRICTIVE COVENANTS.
Notwithstanding any other provision of this Indenture, the restrictive
covenants set forth herein, including, without limitation, those described under
Section 10.10 hereof, shall be and shall be deemed limited to the extent
necessary so that the creation, existence and effectiveness of such restrictive
covenants shall not result in a breach of Section 10.19 of the 2001 Indenture,
which limits dividend and other payment restrictions affecting certain
Subsidiaries of the Company.
ARTICLE 11
REDEMPTION OF SECURITIES
11.1 RIGHT OF REDEMPTION.
The Notes may be redeemed, at the election of the Company, as a whole
or from time to time in part, at any time on or after April 9, 2008, upon not
less than 30 nor more than 60 days' notice to each Holder of Notes to be
redeemed, subject to the conditions and at the Redemption Prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest and Liquidated Damages, if any, to the applicable Redemption
Date.
Year Percentage
---- ----------
2008................... 104.93750%
2009................... 102.46875%
2010................... 100.00000%
Notwithstanding the foregoing, at any time after April 9, 2005, and
prior to April 9, 2008, we may, subject to any restriction or other provisions
relating thereto contained in any of the Company's unsubordinated Indebtedness,
on any one or more occasions redeem up to 35% of the original aggregate
principal amount of the Notes with the Net Cash Proceeds of one or more Equity
Offerings at a redemption price of 109.875%, plus accrued and unpaid interest,
to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date); provided that (i) at least 65% of the original aggregate principal amount
of the Notes remains outstanding after each such redemption; and (ii) the
redemption occurs within 90 days after the closing of such Equity Offering.
11.2 APPLICABILITY OF ARTICLE.
Redemption of securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, will be made in
accordance with such provision and this Article 11.
11.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section
11.1 hereof will be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the
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Company will, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice will be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed and will deliver to the Trustee such documentation and records as will
enable the Trustee to select the Notes to be redeemed pursuant to Section 11.4
hereof. Any election to redeem Notes will be revocable until the Company gives a
notice of redemption pursuant to Section 11.5 hereof to the Holders of Notes to
be redeemed.
11.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed will be selected not less than 30 days nor more than 60 days prior
to the Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, pro rata or by any other method as the Trustee will deem
fair and appropriate and which may provide for the selection for redemption of
portions of the principal of Notes; provided, however, that any such partial
redemption will be in integral multiples of $1,000.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes will relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
11.5 NOTICE OF REDEMPTION.
Notice of redemption will be given in the manner provided for in
Section 14.5 hereof not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed.
All notices of redemption will state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal amounts)
of the particular securities to be redeemed;
(d) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as provided in
Section 11.7 hereof) will become due and payable upon each such Note, or the
portion thereof, to be redeemed, and that, unless the Company will default in
the payment of the Redemption Price and any applicable accrued interest,
interest thereon will cease to accrue on and after said date;
88
(e) the place or places where such Notes are to be surrendered for
payment of the Redemption Price; and
(f) the CUSIP number, if any.
Notice of redemption of Notes to be redeemed at the election of the
Company will be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Failure to give such
notice by mailing to any Holder of Notes or any defect therein will not affect
the validity of any proceedings for the redemption of other securities.
11.6 DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m. Eastern Time, on any Redemption Date, the
Company will deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3 hereof) an amount of money sufficient to pay the Redemption Price
of, and accrued and unpaid interest on, all the Notes which are to be redeemed
on such Redemption Date.
11.7 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed will, on the Redemption Date, become due and payable at the Redemption
Price therein specified (together with accrued and unpaid interest, if any, to
the Redemption Date), and from and after such date (unless the Company will
default in the payment of the Redemption Price and accrued and unpaid interest)
such Notes will cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note will be paid by the Company
at the Redemption Price, together with accrued and unpaid interest, if any, to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.11 hereof.
If any Note called for redemption will not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) will, until paid,
bear interest from the Redemption Date at the rate borne by the Notes.
11.8 SECURITIES REDEEMED IN PART.
Any Note which is to be redeemed only in part will be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 10.2 hereof (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Xxxxxx's
attorney duly authorized in writing), and the Company will execute, and the
Trustee will authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal amount of the Note so surrendered.
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ARTICLE 12
DEFEASANCE AND DISCHARGE
12.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, elect
to have either Section 12.2 or 12.3 hereof be applied to all Outstanding Notes,
upon compliance with the conditions set forth below in this Article 12.
12.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.2, the Company and the Subsidiary Guarantors will
be deemed to have been discharged from their respective obligations with respect
to all Outstanding Notes on the date the conditions set forth in Section 12.4
hereof are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such
Legal Defeasance means that the Company and the Subsidiary Guarantors will be
deemed (i) to have paid and discharged their respective obligations under the
Outstanding Notes; provided, however, that the Notes will continue to be deemed
to be "Outstanding" for purposes of Section 12.5 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 Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense and
direction of the Company, will execute proper instruments acknowledging the
same), except for the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Outstanding Notes to receive,
solely from the trust fund described in Section 12.4 hereof and as more fully
set forth in such Section, payments in respect of the principal of (and premium
if any, on), interest and Liquidated Damages, if any, on such Notes when such
payments are due (or at such time as the Notes would be subject to redemption at
the option of the Company in accordance with this Indenture), (b) the respective
obligations of the Company and the Subsidiary Guarantors under Sections 3.3,
3.5, 3.6, 3.9, 3.13, 5.8, 5.14, 6.6, 6.9, 6.10, 10.2, 10.3, 13.1 (to the extent
it relates to the foregoing Sections and this Article 12), 13.4 and 13.5 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder,
and (d) the obligations of the Company and the Subsidiary Guarantors under this
Article 12. Subject to compliance with this Article 12, the Company may exercise
its option under this Section 12.2 notwithstanding the prior exercise of its
option under Section 12.3 hereof with respect to the Notes.
12.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.3, the Company and each Subsidiary Guarantor will
be released from their respective obligations under any covenant contained in
Article 9, in Sections 10.5 - 10.20 and in Section 13.2 hereof with respect to
the Outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes will 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 will continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose,
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such Covenant Defeasance means that, with respect to the Outstanding Notes, the
Company and each Subsidiary Guarantor may omit to comply with and will 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 will not constitute a Default or an Event of Default under Section
5.1(c), 5.1(d), 5.1(e), 5.1(g) hereof, but, except as specified above, the
remainder of this Indenture and such Notes will be unaffected thereby.
12.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following will be the conditions to application of either Section
12.2 or 12.3 hereof to the Outstanding Notes:
(a) The Company or any Subsidiary Guarantor must irrevocably
deposit or cause to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.7 hereof who will agree to comply with the
provisions of this Article 12 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 Notes, (a) cash in
U.S. 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 will be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Outstanding Notes on the Stated Maturity
thereof (or Redemption Date, if applicable), provided that the Trustee will 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
Notes. Before such a deposit, the Company may give to the Trustee, in accordance
with Section 11.3 hereof, a notice of its election to redeem all of the
Outstanding Notes at a future date in accordance with Article 13 hereof, which
notice will be irrevocable. The Company shall specify whether the Notes are
being defeased to maturity or to a particular Redemption Date. Such irrevocable
redemption notice, if given, will be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (2) 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
will also include a depositary 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 depositary 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 depositary receipt from any amount received
by the custodian in
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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 depositary
receipt.
(b) No Event of Default with respect to the Notes will have
occurred and be continuing on the date of such deposit or, insofar as Sections
5.1(h) and 5.1(i) are concerned, at any time during the period ending on the
91st day after the date of such deposit.
(c) The Company must deliver to the Trustee an Opinion of Counsel
to the effect that after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(d) The Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of hindering, delaying or defrauding, or making preferential payments to the
holders of Notes in lieu of payments to, creditors of the Company or its
subsidiaries.
(e) Such Legal Defeasance or Covenant Defeasance will 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.
(f) Such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any 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.
(g) In the case of an election under Section 12.2 hereof the
Company will 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 Notes 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 will also
state that such ruling or applicable law is consistent with the conclusions
reached in such Opinion of Counsel and (2) the Trustee will be under no
obligation to investigate the basis of correctness of such ruling).
(h) In the case of an election under Section 12.3 hereof, the
Company will have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders or the Outstanding Notes 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 (in the case of Legal Defeasance, such opinion must refer to and be
based upon a published ruling of the Internal Revenue Service or a change in
applicable federal income tax laws).
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(i) The Company will have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
12.2 hereof or the Covenant Defeasance under Section 12.3 (as the case may be)
have been satisfied.
12.5 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 10.3 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 12.5, the "Trustee") pursuant to Section 12.4 hereof in
respect of the Outstanding Notes will be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes 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 Notes 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 will 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 12.4 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Notes.
Anything in this Article 12 to the contrary notwithstanding, the
Trustee will 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 12.4 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 12.
12.6 REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 12.5 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 the Subsidiary Guarantors' obligations
under this Indenture and the Notes will be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3 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 12.5 hereof; provided, however, that if
the Company or any Subsidiary Guarantor makes any payment of principal of (or
premium if any, on), interest or Liquidated Damages, if any, on any Note
following the reinstatement of its obligations, the Company or such Subsidiary
Guarantor will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE 13
SUBSIDIARY GUARANTEES
13.1 UNCONDITIONAL GUARANTEE.
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (each such guarantee being referred to herein as this
"Subsidiary Guarantee," with all such guarantees being referred to herein as the
"Subsidiary Guarantees") to each Holder of Notes authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, the full and
prompt performance of the Company's obligations under this Indenture and the
Notes and that:
(1) the principal of (and premium, if any, on), interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal of and interest on the Notes, if any, to the extent
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
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 13.4
hereof.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately. Each Subsidiary Guarantor
hereby agrees that its obligations hereunder will, to the extent permitted by
law be unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, 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 Subsidiary
Guarantor hereby waives, to the extent permitted by law, diligence, presentment,
demand of payment, filing of claim 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 its
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and in this Subsidiary
Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Subsidiary Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Subsidiary Guarantor, any amount paid by the Company or any Subsidiary Guarantor
to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, will be reinstated in full force and effect. Each
Subsidiary Guarantor agrees it will not be entitled to enforce 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. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the
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Holders and the Trustee, on the other hand, (a) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 7 hereof for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article 7 hereof, such obligations (whether or not due and
payable) will forthwith become due and payable by each Subsidiary Guarantor for
the purpose of this Subsidiary Guarantee.
13.2 SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Article 8 hereof, nothing contained in
this Indenture or in any of the Notes will prevent any consolidation or merger
of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor or will prevent any sale, conveyance or other disposition of all or
substantially all the Properties of a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor.
(b) Except as set forth in Article 8 hereof, nothing contained in
this Indenture or in any of the Notes will prevent any consolidation or merger
of a Subsidiary Guarantor with or into a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor), or successive consolidations or mergers in which a Subsidiary
Guarantor or its successor or successors will be a party or parties, or will
prevent any sale, conveyance or other disposition of all or substantially all
the Properties of a Subsidiary Guarantor to a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor) authorized to acquire and operate the same; provided, however, that
(a) immediately after such transaction, and giving effect thereto, no Default or
Event of Default will have occurred as a result of such transaction and be
continuing, (b) such transaction will not violate any of the covenants of
Sections 10.1 - 10.20 hereof and (c) each Subsidiary Guarantor hereby covenants
and agrees that, upon any such consolidation, merger, sale, conveyance or other
disposition, such Subsidiary Guarantor's Subsidiary Guarantee set forth in this
Article 13 and in a notation to the Notes, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by such Subsidiary Guarantor, will be expressly assumed (in the event
that the Subsidiary Guarantor is not the surviving corporation in a merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by such Person formed by such consolidation, or into
which the Subsidiary Guarantor will have merged, or by the Person that will have
acquired such Property (except to the extent the following Section 13.3 would
result in the release of such Subsidiary Guarantee, in which case such surviving
Person or transferee of such Property will not have to execute any such
supplemental indenture and will not have to assume such Subsidiary Guarantor's
Subsidiary Guarantee). In the case of any such consolidation, merger, sale,
conveyance or other disposition and upon the assumption by the successor Person,
by supplemental indenture executed and delivered to the Trustee and satisfactory
in form, to the Trustee of the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person will succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as the
initial Subsidiary Guarantor.
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13.3 RELEASE OF SUBSIDIARY GUARANTORS.
Upon the sale or disposition (by merger or otherwise) of a Subsidiary
Guarantor (or of all or substantially all of its Properties) to a Person other
than the Company or another Subsidiary Guarantor and pursuant to a transaction
that is otherwise in compliance with the terms of this Indenture, including but
not limited to the provisions of Section 13.2 hereof or pursuant to Article 8
hereof, such Subsidiary Guarantor will be deemed released from its Subsidiary
Guarantee and all related obligations under this Indenture; provided, however,
that any such termination will occur only to the extent that all obligations of
such Subsidiary Guarantor under all of its Guarantees of, and under all of its
pledges of assets or other security interests which secure, other Indebtedness
of the Company or any other Restricted Subsidiary will also terminate upon such
sale or other disposition. The Trustee will deliver an appropriate instrument
evidencing such release upon receipt of a Company Request accompanied by an
Officers' Certificate and an Opinion of Counsel certifying that such sale or
other disposition was made by the Company in accordance with the provisions of
this Indenture.
Each Subsidiary Guarantor that is designated as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture will be released
from its Subsidiary Guarantee and all related obligations under this Indenture
for so long as it remains an Unrestricted Subsidiary. The Trustee will deliver
an appropriate instrument evidencing such release upon its receipt of the Board
Resolution designating such Subsidiary Guarantor as an Unrestricted Subsidiary.
Notwithstanding any other provision of this Indenture, each Subsidiary
Guarantor will be deemed released from its respective Subsidiary Guarantee and
all related obligations under this Indenture in the event that all obligations
of such Subsidiary Guarantor under the guarantee which resulted in the creation
of such Subsidiary Guarantee will also terminate, except a termination,
discharge or release of such guarantee by or as a result of, payment under such
guarantee. The Trustee will deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officer's
Certificate and Opinion of Counsel certifying that all such obligations of such
Subsidiary Guarantee have terminated.
Any Subsidiary Guarantor not released in accordance with this Section
13.3 will remain liable for the full amount of principal of (and premium, if
any, on) and interest on the Notes as provided in this Article 13.
13.4 LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirm that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Federal 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 each Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
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Guarantor under its Subsidiary Guarantee or pursuant to Section 13.5 hereof,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting such a fraudulent conveyance or fraudulent transfer.
This Section 13.4 is for the benefit of the creditors of each Subsidiary
Guarantor.
13.5 CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor will
be entitled to a contribution from each other Subsidiary Guarantor (if any) in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Company's obligations with
respect to the Notes or any other Subsidiary Guarantor's obligations with
respect to its Subsidiary Guarantee.
13.6 EXECUTION AND DELIVERY OF NOTATIONS OF SUBSIDIARY GUARANTEES.
To evidence its Subsidiary Guarantee set forth in Section 13.1 hereof,
each Subsidiary Guarantor hereby agrees to execute the notations of Subsidiary
Guarantees in substantially the form set forth in Exhibit A hereto to be
endorsed on all Notes ordered to be authenticated and delivered by the Trustee
and each Subsidiary Guarantor agrees that this Indenture will be executed on
behalf of such Subsidiary Guarantor by its President or one of its Vice
Presidents. Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 13.1 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee. Each such notation of Subsidiary Guarantee will be signed
on behalf of each Subsidiary Guarantor by its President or one of its Vice
Presidents (each of whom will, in each case, have been duly authorized by all
requisite corporate action) prior to the authentication of the Note on which it
is endorsed, and the delivery of such Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery of the Subsidiary
Guarantee set forth in this Indenture on behalf of such Subsidiary Guarantor.
Such signatures upon the notation of Subsidiary Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Subsidiary Guarantee, and in case any such officer who will
have signed the notation of Subsidiary Guarantee will cease to be such officer
before the Note on which such notation of Subsidiary Guarantee is endorsed will
have been authenticated and delivered by the Trustee or disposed of by the
Company, such Note nevertheless may be authenticated and delivered or disposed
of as though the Person who signed the notation of Subsidiary Guarantee had not
ceased to be such officer of the Subsidiary Guarantor.
13.7 SEVERABILITY.
In case any provision of this Subsidiary Guarantee will be invalid,
illegal or unenforceable, that portion of such provision that is not invalid,
illegal or unenforceable will remain in effect, and the validity, legality, and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
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13.8 ARTICLE 13 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of the Subsidiary Guarantees
by reason of any provision in this Article 13 will not be construed as
preventing the occurrence of an Event of Default under this Indenture.
13.9 PAYMENT.
For purposes of this Article 13, a payment with respect to any
Subsidiary Guarantor or with respect to principal of or interest on the Note or
any Subsidiary Guarantee will include, without limitation, payment of principal
of and interest on any Note, any payment on account of any repurchase or
redemption of any Note and any payment or recovery on any claim (whether for
rescission or damages and whether based on contract, tort, duty imposed by law,
or any other theory of liability) relating to or arising out of the offer, sale
or purchase of any Note.
ARTICLE 14
MISCELLANEOUS
14.1 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or such Subsidiary Guarantor, as the case may be, will
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act or this Indenture. Each such certificate and each such
opinion will be in the form of an Officers' Certificate or an Opinion of
Counsel, as applicable, and will comply with the requirements of this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 14.1
and the statements required by this Section 14.1 will comply in all respects
with TIA Sections 314(c) and (e).
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14.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate, or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such Opinion of Counsel may be based, insofar as it relates to factual matters,
upon an Officer's Certificate, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
14.3 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action will become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent will be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of Notes
held by any Person, and the date of holding the same, will be proved by the Note
Register.
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(d) If the Company will solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company will have no obligation to do so. Notwithstanding TIA Section
316(c), such record date will be the record date specified in or pursuant to
such Board Resolution, which will be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date will be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes will be computed as of such record
date, provided that no such authorization, agreement or consent by the Holders
on such record date will be deemed effective unless it will become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note will bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
14.4 NOTICES, ETC. TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to or filed with
(a) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor will be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (in the English language) and delivered in person
or mailed by certified or registered mail (return receipt requested) to the
Trustee at its Corporate Trust Office; or
(b) the Company or any Subsidiary Guarantor by the Trustee or by
any Holder will be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing (in the English language) and delivered
in person or mailed by certified or registered mail (return receipt requested)
to the Company or such Subsidiary Guarantor, as applicable, addressed to it at
the Company's principal office located at 0000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, or at any other address otherwise furnished in writing to
the Trustee by the Company.
14.5 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders by the
Company, the Trustee or any Paying Agent, such notice will be sufficiently given
(unless otherwise herein
100
expressly provided) if in writing (in the English language) and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
will affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed will be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either herein or after the event, and such waiver will be the equivalent
of such notice. Waivers of notice by Holders will be filed with the Trustee, but
such filing will not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it will be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
will be satisfactory to the Trustee will be deemed to be a sufficient giving of
such notice for every purpose hereunder.
14.6 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and will not affect the construction hereof.
14.7 SUCCESSORS AND ASSIGNS.
All caveats and agreements in this Indenture by the Company and the
Subsidiary Guarantors will bind their respective successors and assigns, whether
so expressed or not. All agreements of the Trustee in this Indenture will bind
its successor.
14.8 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes or the
Subsidiary Guarantees will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby, and a Holder will have no claim therefor against
any party hereto.
14.9 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, will
give to any Person (other than the parties hereto, any Paying Agent, any Notes
Registrar and their successors hereunder, the Holders and, to the extent set
forth in Section 13.4 hereof, creditors of Subsidiary Guarantors) any benefit or
any legal or equitable right, remedy or claim under this Indenture.
14.10 GOVERNING LAW; TRUST INDENTURE ACT CONTROLS.
(a) THIS INDENTURE, THE SUBSIDIARY GUARANTEES AND THE SECURITIES
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
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THE LAW OF THE STATE OF NEW YORK. THE COMPANY AND EACH SUBSIDIARY GUARANTOR
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE SUBSIDIARY GUARANTEES, AND THE COMPANY AND EACH
SUBSIDIARY GUARANTOR IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED BY ANY SUCH COURT.
(b) This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and will, to the
extent applicable, be governed by such provisions. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by operation of Section 313(c) of the Trust Indenture Act, or conflicts
with any provision (an "incorporated provision") required by or deemed to be
included in this Indenture by operation of such Trust Indenture Act section,
such imposed duties or incorporated provision will control.
14.11 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, or Stated
Maturity or Maturity of any Note will not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes or the
Subsidiary Guarantee) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity or Maturity; provided, however, that
no interest will accrue for the period from and after such Interest Payment
Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
14.12 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, incorporator or Affiliate,
as such, past, present or future, of the Company or any Subsidiary Guarantor
will not have any personal liability under the Notes or this Indenture by reason
of his or its status as a director, officer, employee, stockholder, incorporator
or Affiliate or any liability for any obligations of the Company or any
Subsidiary Guarantor 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, by accepting any of the Notes, waives and releases all such liability to
the extent permitted by applicable law.
14.13 DUPLICATE ORIGINALS.
The parties may sign any number of copies or counterparts of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
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14.14 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.
103
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ISSUER:
MISSION RESOURCES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS:
BLACK HAWK OIL COMPANY
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
MISSION HOLDINGS LLC
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
MISSION E&P LIMITED PARTNERSHIP
By: Black Hawk Oil Company
General Partner
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
TRUSTEE:
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Assistant Treasurer
EXHIBIT A-1
Specimen of
Rule 144A Global Note for Notes due 2011
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
3.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF REPRESENTS THAT IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR
WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION SATISFACTORY TO EACH
OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED
AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
MISSION RESOURCES CORPORATION
9 7/8% Senior Note due 2011
No. A-1 $130,000,000
CUSIP No. 000000XX0
Mission Resources Corporation, a Delaware corporation (herein called
the "COMPANY" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assignee the principal sum of One Hundred Thirty Million
Dollars on April 1, 2011 at the office or agency of the Company referred to
below, and to pay interest thereon, commencing on October 1, 2004 and continuing
semiannually thereafter, on April 1 and October 1 in each year, from April 8,
2004, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, at the rate of 9 7/8% per annum, until the principal
hereof is paid or duly provided for, and (to the extent lawful) to pay on demand
interest on any overdue interest at the rate borne by the Notes from the date on
which such overdue interest becomes payable to the date payment of such interest
has been made or duly provided for. The Company also hereby promises to pay the
Liquidated Damages, if any, payable pursuant to Section 3 of the Registration
Rights Agreement on the same dates on which interest is payable as provided
herein. The interest and Liquidated Damages, if any, so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered on the Note Register at the close of business
on the Regular Record Date for such interest which will be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest or Liquidated Damages not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date, and such Defaulted Interest, Liquidated
Damages and (to the extent lawful) interest on such Defaulted Interest and
Liquidated Damages at the rate borne by the Notes, may be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered on the
Note Register at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof will be
given to Holders of Notes not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and interest and
Liquidated Damages, if any, on this Note will be made at the office or agency of
the Company maintained for that purpose in The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest and Liquidated Damages, if any, may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address will appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions will for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
will not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in its corporate name by the signature of its officer thereunto duly
authorized.
MISSION RESOURCES CORPORATION
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Attested By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
This Note is one of a duly authorized issue of securities of the
Company designated as its 9 7/8% Senior Notes due 2011 (herein called the
"NOTES"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $130,000,000, which may be issued under
an indenture (herein called the "INDENTURE") dated as of April 8, 2004 among the
Company, the initial Subsidiary Guarantors named therein and The Bank of New
York (herein called the "TRUSTEE," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitation of
rights, duties, obligations and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes may be redeemed at the election of the Company, in whole or
from time to time in part, at any time after April 8, 2008 and upon not less
than 30 nor more than 60 days' notice, at the Redemption Prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest and Liquidated Damages, if any, to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on April 9 of the
years indicated below:
Year Percentage
---- ----------
2008...................................... 104.93750%
2009...................................... 102.46875%
2010...................................... 100.00000%
Notwithstanding the foregoing, at any time on or after April 9, 2005,
and prior to April 9, 2008, the Company may, subject to any restriction or other
provisions relating thereto contained in any of the Company's unsubordinated
Indebtedness, on any one or more occasions redeem up to 35% of the original
aggregate principal amount of the Notes with the Net Cash Proceeds of one or
more Equity Offerings at a Redemption Price of 109.875%, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date); provided that (1) at least 65% of the
original aggregate principal amount of the Notes remains outstanding after each
such redemption; and (2) the redemption occurs within 90 days after the closing
of such Equity Offering.
If less than all the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee on a pro rata basis, provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon surrender
of the original Note. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of them called for redemption.
If the optional Redemption Date is on or after a Regular Record Date
and on or before the related Interest Payment Date, the accrued and unpaid
interest will be paid to the person in
3
whose name the Note is registered at the close of business, on such Regular
Record Date, and no further interest will be payable to Holders whose Notes will
be subject to redemption by the Company.
The Notes do not have the benefit of any mandatory redemption or
sinking fund obligations.
In the event of a Change of Control of the Company, and subject to
certain conditions and limitations provided in the Indenture, the Company will
be obligated to make an offer to purchase within 30 calendar days following the
occurrence of a Change of Control of the Company, all of the then Outstanding
Notes at a purchase price equal to 101% of the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to the
Change of Control Payment Date, all as provided in the Indenture.
In the event of Asset Sales, under certain circumstances, the Company
will be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Notes at a purchase price equal to 100% of the
principal amount of the Notes, together with accrued and unpaid interest and
Liquidated Damages, if any, to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (i)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer), (ii) default for
30 days in payment of interest on any of the Notes, (iii) default in the
performance of payments relating to mergers, consolidations and sales of all or
substantially all assets or the failure to make or consummate a Change of
Control Offer or a Net Proceeds Offer, (iv) failure for 60 days after notice of
such failure to comply with any other covenants in the Indenture or the Notes,
(v) certain payment defaults under, and the acceleration prior to the maturity
of, certain Indebtedness of the Company or any Restricted Subsidiary (other than
Non-Recourse Indebtedness) in an aggregate principal amount in excess of
$5,000,000, (vi) the failure of any Subsidiary Guarantee to be in full force and
effect or otherwise to be enforceable (except as permitted by the Indenture),
(vii) certain final judgments or orders against the Company or any Restricted
Subsidiary in an aggregate amount of more than $5,000,000 over the coverage
under applicable insurance policies which remain unsatisfied and either become
subject to commencement of enforcement proceedings or remain unstayed for a
period of 60 days and (viii) certain events of bankruptcy, insolvency or
reorganization of the Company or any Material Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes may declare the principal
amount of all the Notes to be due and payable immediately, except that (i) in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Material Subsidiary, the
principal amount of the Notes will become due and payable immediately without
further action or notice, and (ii) in the case of an Event of Default which
relates to certain payment defaults or acceleration with respect to certain
Indebtedness, any Event of Default and any consequential acceleration of the
Notes will be automatically rescinded if any such Indebtedness is repaid or if
the default relating to such Indebtedness is cured or waived and if the Holders
thereof have accelerated such Indebtedness then such Holders have rescinded
their declaration of acceleration. No Holder may pursue any remedy under the
Indenture unless the Trustee will have failed to act after notice from such
Holder of an Event of Default and written request by Holders of at least 25% in
aggregate principal amount of the
4
Outstanding Notes, and the offer to the Trustee of indemnity reasonably
satisfactory to it; however, such provision does not affect the right to sue for
enforcement of any overdue payment on a Note by the Holder thereof. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default (except
default in payment of principal, premium or interest) if it determines in good
faith that withholding the notice is in the interest of the Holders. The Company
is required to file annual and quarterly reports with the Trustee as to the
absence or existence of defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Note and (ii) discharge from certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company and certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment therefore and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
and the consent of the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note will be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof for
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Note. Without the consent of any Holder, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to add or release any Subsidiary
Guarantor pursuant to the Indenture, to provide for uncertificated Notes in
addition to or in place of certificated Notes and to make certain other
specified changes and other changes that do not adversely affect the interests
of any Holder in any material respect.
No reference herein to the Indenture and no provision of this Note or
of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest and Liquidated Damages on this Note at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Note is registerable on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
5
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
No director, officer, employee, incorporator, stockholder or Affiliate
of the Company or any Subsidiary Guarantor, as such, past, present or future,
will have any personal liability under this Note or the Indenture by reason of
his, her or its status as such director, officer, employee, incorporator,
stockholder or Affiliate, or any liability for any obligations of the Company or
any Subsidiary Guarantor under the Notes or the Indenture or for any claim based
on, in respect of, or by reason of such obligations or their creation. Each
Holder, by accepting this Note with the notation of Subsidiary Guarantee
endorsed hereon, waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of this Note with the notation of
Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Note of registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor any
agent will be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture will
have the meanings assigned to them in the Indenture. The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to the Company at 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders thereof. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identifying information printed hereon.
Interest on this Note will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Note will be governed by and construed in accordance with the laws
of the State of New York.
6
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary Guarantors (as
defined in the Indenture referred to in the Note upon which this notation is
endorsed and each being hereinafter referred to as a "SUBSIDIARY GUARANTOR,"
which term includes any additional or successor Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a) the due
and punctual payment of the principal of (and premium, if any) and interest, and
Liquidated Damages, if any, on the Notes, whether at maturity, acceleration,
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest, and Liquidated Damages on the Notes, if any,
to the extent lawful, (c) the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms set forth in the Indenture, and (d) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee will be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the Adjusted Net Assets of each Subsidiary Guarantor.
No member, partner, stockholder, officer, director, manager, employee,
incorporator or Affiliate as such, past, present or future, of any Subsidiary
Guarantor will have any personal liability under its Subsidiary Guarantee by
reason of his, her or its status as such member, partner, stockholder, officer,
director, manager, employee, incorporator or Affiliate, or any liability for any
obligations of any Subsidiary Guarantor under the Notes or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Note upon which this notation of
Subsidiary Guarantees is endorsed will have the meanings assigned to them in
such Indenture.
7
The Subsidiary Guarantees will be binding upon the Subsidiary
Guarantors and will inure to the benefit of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee
respecting the Note upon which the foregoing Subsidiary Guarantees are noted,
the rights and privileges herein conferred upon that party will automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof and in the Indenture.
The Subsidiary Guarantees will not be valid obligations for any purpose
until the certificate of authentication on the Note upon which the foregoing
Subsidiary Guarantees are noted will have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
BLACK HAWK OIL COMPANY
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
MISSION HOLDINGS LLC
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
MISSION E&P LIMITED PARTNERSHIP
By: Black Hawk Oil Company
General Partner
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
Dated:____________ THE BANK OF NEW YORK
as Trustee
By:
------------------------------------
Authorized Signatory
9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
-----------------------
Your signature:
------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------
SIGNATURE GUARANTEE:
------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements include
membership or participation in the
Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition
to, or in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as amended.
10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 10.15 or 10.16 of the Indenture, check the box below:
[ ] Section 10.15 [ ] Section 10.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 10.15 or Section 10.16 of the Indenture, state the
amount you elect to have purchased: $_______
Date:
-----------------------
Your signature:
------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------
SIGNATURE GUARANTEE:
------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements include
membership or participation in the
Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition
to, or in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as amended.
11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or
Date of Exchange of this Global Note this Global Note increase) custodian
---------------- ------------------- --------------------- ------------------- ------------------
12
EXHIBIT A-2
Specimen of Regulation S
Global Notes for Note due 2011
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
PRIOR TO EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE
INDENTURE), THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON
REASONABLY BELIEVED TO BE (2) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A AND THE INDENTURE REFERRED TO HEREIN OR (2) AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
3.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF REPRESENTS THAT IT IS
NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATIONS S UNDER THE SECURITIES ACT AND AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY
INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
MISSION RESOURCES CORPORATION
9 7/8% Senior Note due 2011
No. A-1 $0.00
CUSIP No. 000000XX0
Mission Resources Corporation, a Delaware corporation (herein called
the "COMPANY" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assignee the principal sum of Zero Dollars on April 1, 2011 at
the office or agency of the Company referred to below, and to pay interest
thereon, commencing on October 1, 2004 and continuing semiannually thereafter,
on April 1 and October 1 in each year from April 8, 2004, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 9 7/8% per annum, until the principal hereof is paid or duly
provided for, and (to the extent lawful) to pay on demand interest on any
overdue interest at the rate borne by the Notes from the date on which such
overdue interest becomes payable to the date payment of such interest has been
made or duly provided for. The Company also hereby promises to pay the
Liquidated Damages, if any, payable pursuant to Section 3 of the Registration
Rights Agreement on the same dates on which interest is payable as provided
herein. The interest and Liquidated Damages, if any, so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered on the Note Register at the close of business
on the Regular Record Date for such interest which will be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest or Liquidated Damages not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date, and such Defaulted Interest, Liquidated
Damages and (to the extent lawful) interest on such Defaulted Interest and
Liquidated Damages at the rate borne by the Notes, may be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered on the
Note Register at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof will be
given to Holders of Notes not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and interest and
Liquidated Damages, if any, on this Note will be made at the office or agency of
the Company maintained for that purpose in The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest and Liquidated Damages, if any, may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address will appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions will for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
will not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in its corporate name by the signature of its officer thereunto duly
authorized.
MISSION RESOURCES CORPORATION
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Attested By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
This Note is one of a duly authorized issue of securities of the
Company designated as its 9 7/8% Senior Notes due 2011 (herein called the
"NOTES"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $130,000,000, which may be issued under
an indenture (herein called the "INDENTURE") dated as of April 8, 2004 among the
Company, the initial Subsidiary Guarantors named therein and The Bank of New
York (herein called the "TRUSTEE," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitation of
rights, duties, obligations and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes may be redeemed at the election of the Company, in whole or
from time to time in part, at any time after April 8, 2008 and upon not less
than 30 nor more than 60 days' notice, at the Redemption Prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest and Liquidated Damages, if any, to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on April 9 of the
years indicated below:
Year Percentage
---- ----------
2008...................................... 104.93750%
2009...................................... 102.46875%
2010...................................... 100.00000%
Notwithstanding the foregoing, at any time on or after April 9, 2005,
and prior to April 9, 2008, the Company may, subject to any restriction or other
provisions relating thereto contained in any of the Company's unsubordinated
Indebtedness, on any one or more occasions redeem up to 35% of the original
aggregate principal amount of the Notes with the Net Cash Proceeds of one or
more Equity Offerings at a Redemption Price of 109.875%, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date); provided that (1) at least 65% of the
original aggregate principal amount of the Notes remains outstanding after each
such redemption; and (2) the redemption occurs within 90 days after the closing
of such Equity Offering.
If less than all the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee on a pro rata basis, provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon surrender
of the original Note. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of them called for redemption.
If the optional Redemption Date is on or after a Regular Record Date
and on or before the related Interest Payment Date, the accrued and unpaid
interest will be paid to the person in
3
whose name the Note is registered at the close of business, on such Regular
Record Date, and no further interest will be payable to Holders whose Notes will
be subject to redemption by the Company.
The Notes do not have the benefit of any mandatory redemption or
sinking fund obligations.
In the event of a Change of Control of the Company, and subject to
certain conditions and limitations provided in the Indenture, the Company will
be obligated to make an offer to purchase within 30 calendar days following the
occurrence of a Change of Control of the Company, all of the then Outstanding
Notes at a purchase price equal to 101% of the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to the
Change of Control Payment Date, all as provided in the Indenture.
In the event of Asset Sales, under certain circumstances, the Company
will be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Notes at a purchase price equal to 100% of the
principal amount of the Notes, together with accrued and unpaid interest and
Liquidated Damages, if any, to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (i)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer), (ii) default for
30 days in payment of interest on any of the Notes, (iii) default in the
performance of payments relating to mergers, consolidations and sales of all or
substantially all assets or the failure to make or consummate a Change of
Control Offer or a Net Proceeds Offer, (iv) failure for 60 days after notice of
such failure to comply with any other covenants in the Indenture or the Notes,
(v) certain payment defaults under, and the acceleration prior to the maturity
of, certain Indebtedness of the Company or any Restricted Subsidiary (other than
Non-Recourse Indebtedness) in an aggregate principal amount in excess of
$5,000,000, (vi) the failure of any Subsidiary Guarantee to be in full force and
effect or otherwise to be enforceable (except as permitted by the Indenture),
(vii) certain final judgments or orders against the Company or any Restricted
Subsidiary in an aggregate amount of more than $5,000,000 over the coverage
under applicable insurance policies which remain unsatisfied and either become
subject to commencement of enforcement proceedings or remain unstayed for a
period of 60 days and (viii) certain events of bankruptcy, insolvency or
reorganization of the Company or any Material Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes may declare the principal
amount of all the Notes to be due and payable immediately, except that (i) in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Material Subsidiary, the
principal amount of the Notes will become due and payable immediately without
further action or notice, and (ii) in the case of an Event of Default which
relates to certain payment defaults or acceleration with respect to certain
Indebtedness, any Event of Default and any consequential acceleration of the
Notes will be automatically rescinded if any such Indebtedness is repaid or if
the default relating to such Indebtedness is cured or waived and if the Holders
thereof have accelerated such Indebtedness then such Holders have rescinded
their declaration of acceleration. No Holder may pursue any remedy under the
Indenture unless the Trustee will have failed to act after notice from such
Holder of an Event of Default and written request by Holders of at least 25% in
aggregate principal amount of the
4
Outstanding Notes, and the offer to the Trustee of indemnity reasonably
satisfactory to it; however, such provision does not affect the right to sue for
enforcement of any overdue payment on a Note by the Holder thereof. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default (except
default in payment of principal, premium or interest) if it determines in good
faith that withholding the notice is in the interest of the Holders. The Company
is required to file annual and quarterly reports with the Trustee as to the
absence or existence of defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Note and (ii) discharge from certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company and certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment therefore and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
and the consent of the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note will be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof for
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Note. Without the consent of any Holder, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to add or release any Subsidiary
Guarantor pursuant to the Indenture, to provide for uncertificated Notes in
addition to or in place of certificated Notes and to make certain other
specified changes and other changes that do not adversely affect the interests
of any Holder in any material respect.
No reference herein to the Indenture and no provision of this Note or
of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest and Liquidated Damages on this Note at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Note is registerable on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
5
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
No director, officer, employee, incorporator, stockholder or Affiliate
of the Company or any Subsidiary Guarantor, as such, past, present or future,
will have any personal liability under this Note or the Indenture by reason of
his, her or its status as such director, officer, employee, incorporator,
stockholder or Affiliate, or any liability for any obligations of the Company or
any Subsidiary Guarantor under the Notes or the Indenture or for any claim based
on, in respect of, or by reason of such obligations or their creation. Each
Holder, by accepting this Note with the notation of Subsidiary Guarantee
endorsed hereon, waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of this Note with the notation of
Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Note of registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor any
agent will be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture will
have the meanings assigned to them in the Indenture. The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to the Company at 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders thereof. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identifying information printed hereon.
Interest on this Note will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Note will be governed by and construed in accordance with the laws
of the State of New York.
6
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary Guarantors (as
defined in the Indenture referred to in the Note upon which this notation is
endorsed and each being hereinafter referred to as a "SUBSIDIARY GUARANTOR,"
which term includes any additional or successor Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a) the due
and punctual payment of the principal of (and premium, if any) and interest, and
Liquidated Damages, if any, on the Notes, whether at maturity, acceleration,
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest, and Liquidated Damages on the Notes, if any,
to the extent lawful, (c) the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms set forth in the Indenture, and (d) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee will be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the Adjusted Net Assets of each Subsidiary Guarantor.
No member, partner, stockholder, officer, director, manager, employee,
incorporator or Affiliate as such, past, present or future, of any Subsidiary
Guarantor will have any personal liability under its Subsidiary Guarantee by
reason of his, her or its status as such member, partner, stockholder, officer,
director, manager, employee, incorporator or Affiliate, or any liability for any
obligations of any Subsidiary Guarantor under the Notes or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Note upon which this notation of
Subsidiary Guarantees is endorsed will have the meanings assigned to them in
such Indenture.
7
The Subsidiary Guarantees will be binding upon the Subsidiary
Guarantors and will inure to the benefit of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee
respecting the Note upon which the foregoing Subsidiary Guarantees are noted,
the rights and privileges herein conferred upon that party will automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof and in the Indenture.
The Subsidiary Guarantees will not be valid obligations for any purpose
until the certificate of authentication on the Note upon which the foregoing
Subsidiary Guarantees are noted will have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
BLACK HAWK OIL COMPANY
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
MISSION HOLDINGS LLC
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
MISSION E&P LIMITED PARTNERSHIP
By: Black Hawk Oil Company
General Partner
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
Dated: THE BANK OF NEW YORK
----------------- as Trustee
By:
-----------------------------------
Authorized Signatory
9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
----------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
--------------------
Your signature:
---------------------------------
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
-------------------------
SIGNATURE GUARANTEE:
------------------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 10.15 or 10.16 of the Indenture, check the box below:
[ ] Section 10.15 [ ] Section 10.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 10.15 or Section 10.16 of the Indenture, state the
amount you elect to have purchased: $
--------
Date:
--------------------
Your signature:
----------------------------------
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
------------------------
SIGNATURE GUARANTEE:
-------------------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to, or
in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S
TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest in
this Global Note, have been made:
Principal
Amount of Amount of Amount of this
decrease in increase in Regulation S
Principal Principal Temporary
Amount of this Amount of this Global Note Signature of
Regulation S Regulation S following such authorized
Date of Temporary Temporary decrease (or officer of Trustee
Exchange Global Note Global Note increase) or custodian
-------- -------------- -------------- -------------- ------------------
12
EXHIBIT A-3
Specimen of Institutional Accredited Investor Certificated Note for
Notes due 2011
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF REPRESENTS THAT IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
THE NOTES OF $250,000 OF NOTES, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
MISSION RESOURCES CORPORATION
9 7/8% Senior Note due 2011
No. A-1 $0.00
CUSIP No. 000000XX0
Mission Resources Corporation, a Delaware corporation (herein called
the "COMPANY" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assignee the principal sum of Zero Dollars on April 1,
2011 at the office or agency of the Company referred to below, and to pay
interest thereon, commencing on October 1, 2004 and continuing semiannually
thereafter, on April 1 and October 1 in each year from April 8, 2004, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of 9 7/8% per annum, until the principal hereof is
paid or duly provided for, and (to the extent lawful) to pay on demand interest
on any overdue interest at the rate borne by the Notes from the date on which
such overdue interest becomes payable to the date payment of such interest has
been made or duly provided for. The Company also hereby promises to pay the
Liquidated Damages, if any, payable pursuant to Section 3 of the Registration
Rights Agreement on the same dates on which interest is payable as provided
herein. The interest and Liquidated Damages, if any, so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered on the Note Register at the close of business
on the Regular Record Date for such interest which will be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest or Liquidated Damages not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date, and such Defaulted Interest, Liquidated
Damages and (to the extent lawful) interest on such Defaulted Interest and
Liquidated Damages at the rate borne by the Notes, may be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered on the
Note Register at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof will be
given to Holders of Notes not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and interest and
Liquidated Damages, if any, on this Note will be made at the office or agency of
the Company maintained for that purpose in The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest and Liquidated Damages, if any, may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address will appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions will for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
will not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in its corporate name by the signature of its officer thereunto duly
authorized.
MISSION RESOURCES CORPORATION
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Attested By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
This Note is one of a duly authorized issue of securities of the
Company designated as its 9 7/8% Senior Notes due 2011 (herein called the
"NOTES"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $130,000,000, which may be issued under
an indenture (herein called the "INDENTURE") dated as of April 8, 2004 among the
Company, the initial Subsidiary Guarantors named therein and The Bank of New
York (herein called the "TRUSTEE," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitation of
rights, duties, obligations and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes may be redeemed at the election of the Company, in whole or
from time to time in part, at any time after April 8, 2008 and upon not less
than 30 nor more than 60 days' notice, at the Redemption Prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest and Liquidated Damages, if any, to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on April 9 of the
years indicated below:
Year Percentage
---- ----------
2008....................................... 104.93750%
2009....................................... 102.46875%
2010....................................... 100.00000%
Notwithstanding the foregoing, at any time on or after April 9, 2005,
and prior to April 9, 2008, the Company may, subject to any restriction or other
provisions relating thereto contained in any of the Company's unsubordinated
Indebtedness, on any one or more occasions redeem up to 35% of the original
aggregate principal amount of the Notes with the Net Cash Proceeds of one or
more Equity Offerings at a Redemption Price of 109.875%, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date); provided that (1) at least 65% of the
original aggregate principal amount of the Notes remains outstanding after each
such redemption; and (2) the redemption occurs within 90 days after the closing
of such Equity Offering.
If less than all the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee on a pro rata basis, provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon surrender
of the original Note. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of them called for redemption.
If the optional Redemption Date is on or after a Regular Record Date
and on or before the related Interest Payment Date, the accrued and unpaid
interest will be paid to the person in
5
whose name the Note is registered at the close of business, on such Regular
Record Date, and no further interest will be payable to Holders whose Notes will
be subject to redemption by the Company.
The Notes do not have the benefit of any mandatory redemption or
sinking fund obligations.
In the event of a Change of Control of the Company, and subject to
certain conditions and limitations provided in the Indenture, the Company will
be obligated to make an offer to purchase within 30 calendar days following the
occurrence of a Change of Control of the Company, all of the then Outstanding
Notes at a purchase price equal to 101% of the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to the
Change of Control Payment Date, all as provided in the Indenture.
In the event of Asset Sales, under certain circumstances, the Company
will be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Notes at a purchase price equal to 100% of the
principal amount of the Notes, together with accrued and unpaid interest and
Liquidated Damages, if any, to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (i)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer), (ii) default for
30 days in payment of interest on any of the Notes, (iii) default in the
performance of payments relating to mergers, consolidations and sales of all or
substantially all assets or the failure to make or consummate a Change of
Control Offer or a Net Proceeds Offer, (iv) failure for 60 days after notice of
such failure to comply with any other covenants in the Indenture or the Notes,
(v) certain payment defaults under, and the acceleration prior to the maturity
of, certain Indebtedness of the Company or any Restricted Subsidiary (other than
Non-Recourse Indebtedness) in an aggregate principal amount in excess of
$5,000,000, (vi) the failure of any Subsidiary Guarantee to be in full force and
effect or otherwise to be enforceable (except as permitted by the Indenture),
(vii) certain final judgments or orders against the Company or any Restricted
Subsidiary in an aggregate amount of more than $5,000,000 over the coverage
under applicable insurance policies which remain unsatisfied and either become
subject to commencement of enforcement proceedings or remain unstayed for a
period of 60 days and (viii) certain events of bankruptcy, insolvency or
reorganization of the Company or any Material Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes may declare the principal
amount of all the Notes to be due and payable immediately, except that (i) in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Material Subsidiary, the
principal amount of the Notes will become due and payable immediately without
further action or notice, and (ii) in the case of an Event of Default which
relates to certain payment defaults or acceleration with respect to certain
Indebtedness, any Event of Default and any consequential acceleration of the
Notes will be automatically rescinded if any such Indebtedness is repaid or if
the default relating to such Indebtedness is cured or waived and if the Holders
thereof have accelerated such Indebtedness then such Holders have rescinded
their declaration of acceleration. No Holder may pursue any remedy under the
Indenture unless the Trustee will have failed to act after notice from such
Holder of an Event of Default and written request by Holders of at least 25% in
aggregate principal amount of the
6
Outstanding Notes, and the offer to the Trustee of indemnity reasonably
satisfactory to it; however, such provision does not affect the right to sue for
enforcement of any overdue payment on a Note by the Holder thereof. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default (except
default in payment of principal, premium or interest) if it determines in good
faith that withholding the notice is in the interest of the Holders. The Company
is required to file annual and quarterly reports with the Trustee as to the
absence or existence of defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Note and (ii) discharge from certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company and certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment therefore and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
and the consent of the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note will be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof for
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Note. Without the consent of any Holder, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to add or release any Subsidiary
Guarantor pursuant to the Indenture, to provide for uncertificated Notes in
addition to or in place of certificated Notes and to make certain other
specified changes and other changes that do not adversely affect the interests
of any Holder in any material respect.
No reference herein to the Indenture and no provision of this Note or
of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest and Liquidated Damages on this Note at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Note is registerable on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
7
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
No director, officer, employee, incorporator, stockholder or Affiliate
of the Company or any Subsidiary Guarantor, as such, past, present or future,
will have any personal liability under this Note or the Indenture by reason of
his, her or its status as such director, officer, employee, incorporator,
stockholder or Affiliate, or any liability for any obligations of the Company or
any Subsidiary Guarantor under the Notes or the Indenture or for any claim based
on, in respect of, or by reason of such obligations or their creation. Each
Holder, by accepting this Note with the notation of Subsidiary Guarantee
endorsed hereon, waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of this Note with the notation of
Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Note of registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor any
agent will be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture will
have the meanings assigned to them in the Indenture. The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to the Company at 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders thereof. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identifying information printed hereon.
Interest on this Note will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Note will be governed by and construed in accordance with the laws
of the State of New York.
8
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary Guarantors (as
defined in the Indenture referred to in the Note upon which this notation is
endorsed and each being hereinafter referred to as a "SUBSIDIARY GUARANTOR,"
which term includes any additional or successor Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a) the due
and punctual payment of the principal of (and premium, if any) and interest, and
Liquidated Damages, if any, on the Notes, whether at maturity, acceleration,
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest, and Liquidated Damages on the Notes, if any,
to the extent lawful, (c) the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms set forth in the Indenture, and (d) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee will be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the Adjusted Net Assets of each Subsidiary Guarantor.
No member, partner, stockholder, officer, director, manager, employee,
incorporator or Affiliate as such, past, present or future, of any Subsidiary
Guarantor will have any personal liability under its Subsidiary Guarantee by
reason of his, her or its status as such member, partner, stockholder, officer,
director, manager, employee, incorporator or Affiliate, or any liability for any
obligations of any Subsidiary Guarantor under the Notes or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Note upon which this notation of
Subsidiary Guarantees is endorsed will have the meanings assigned to them in
such Indenture.
9
The Subsidiary Guarantees will be binding upon the Subsidiary
Guarantors and will inure to the benefit of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee
respecting the Note upon which the foregoing Subsidiary Guarantees are noted,
the rights and privileges herein conferred upon that party will automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof and in the Indenture.
The Subsidiary Guarantees will not be valid obligations for any purpose
until the certificate of authentication on the Note upon which the foregoing
Subsidiary Guarantees are noted will have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
BLACK HAWK OIL COMPANY
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
MISSION HOLDINGS LLC
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
MISSION E&P LIMITED PARTNERSHIP
By: Black Hawk Oil Company
General Partner
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
10
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
Dated: THE BANK OF NEW YORK
------------------ as Trustee
By:
---------------------------------
Authorized Signatory
11
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
--------------------
Your signature:
------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------
SIGNATURE GUARANTEE:
---------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements include
membership or participation in the
Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition
to, or in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as amended.
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 10.15 or 10.16 of the Indenture, check the box below:
[ ] Section 10.15 [ ] Section 10.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 10.15 or Section 10.16 of the Indenture, state the
amount you elect to have purchased: $_______
Date:
--------------------
Your signature:
------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------
SIGNATURE GUARANTEE:
---------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements include
membership or participation in the
Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition
to, or in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as amended.
13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Mission Resources Corporation
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-3039
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx Xxx Xxxx 10286
Attention: Corporate Trust Administration
Re: 9 7/8% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of April
8, 2004 (the "Indenture"), among Mission Resources Corporation (the "Company"),
the subsidiary guarantors party thereto and The Bank of New York as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
_______________ (the "Transferor") owns and proposes to
transfer the Securities or interest in such Securities specified in Annex A
hereto, in the principal amount of $________ in such Securities or interests
(the "Transfer"), to _______________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A DEFINITIVE SECURITY PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Definitive Security and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL NOTE OR A
DEFINITIVE SECURITY PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the Regulation
S Global Note, the Temporary Regulation S Global Note and/or the Definitive
Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI CERTIFICATED NOTE OR A DEFINITIVE SECURITY PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Securities and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of any state of the United States,
and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and
in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or
a subsidiary thereof,
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Securities and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee and
(2) if such Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000,
106
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the IAI
Certificated Note and/or the Definitive Securities and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S.
(i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Securities and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes or Restricted Definitive Securities and in the
Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________________
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated: _________, ___
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ______), or
(ii) [ ] Regulation S Global Note (CUSIP ______), or
(iii) [ ] IAI Certificated Note (CUSIP ______); or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ______), or
(ii) [ ] Regulation S Global Note (CUSIP ______), or
(iii) [ ] IAI Certificated Note (CUSIP ______), or
(iv) [ ] Unrestricted Global Note (CUSIP ______); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Mission Resources Corporation
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-3039
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx Xxx Xxxx 10286
Attention: Corporate Trust Administration
Re: 9 7/8 % Senior Subordinated Notes due 2011
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of April
8, 2004 (the "Indenture"), among Mission Resources Corporation (the "Company"),
the subsidiary guarantors party thereto and The Bank of New York, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
_______________ (the "Owner") owns and proposes to exchange
the Securities or interest in such Securities specified herein, in the principal
amount of $______________ in such Securities or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. [ ] EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE SECURITIES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United
States Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE SECURITY. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Definitive Security, the Owner hereby certifies (i) the
Definitive Security is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Owner's Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's
Exchange of a Restricted Definitive Security for an Unrestricted Definitive
Security, the Owner hereby certifies (i) the Unrestricted Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Security
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE SECURITY. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Security with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Security is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Restricted Definitive
Security issued will continue to be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Definitive
Security and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Security for a beneficial interest
in the [CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
________________________________
[Insert Name of Owner]
By: ____________________________
Name:
Title:
Dated:_______, ___
