1
EXHIBIT 4.3
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CHESAPEAKE ENERGY CORPORATION,
as Issuer,
THE SUBSIDIARY GUARANTORS,
as Guarantors,
AND
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
----------------------------
INDENTURE
DATED AS OF MARCH 15, 1997
----------------------------
$150,000,000
SERIES A AND SERIES B
8 1/2% SENIOR NOTES DUE 2012
----------------------------
================================================================================
2
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 12.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 4.3; 12.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 12.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2; 6.4; 9.2
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
-------------------------
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of
this Indenture.
3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.3 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.4 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.5 Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.6 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.7 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.8 Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.9 Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.13 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE III
REDEMPTION
SECTION 3.1 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.2 Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.4 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.6 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.7 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.8 Optional Redemption at Make-Whole Price . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.2 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.3 Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.4 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.5 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.6 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.7 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.8 Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.9 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.10 Limitation on Sale/Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.2 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.3 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.4 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.5 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.6 Limitation on Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.7 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.8 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.9 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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SECTION 7.2 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.5 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.6 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.9 Successor Trustee by Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 47
SECTION 8.2 Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.4 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.5 Deposited Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.6 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.7 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.2 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.3 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.5 Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.6 Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE X
GUARANTEES
SECTION 10.1 Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.2 Subsidiary Guarantors May Consolidate, etc. on Certain Terms . . . . . . . . . . . . . . . 55
SECTION 10.3 Addition of Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4 Release of a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
iii
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SECTION 10.5 Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.6 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.7 Execution and Delivery of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.3 Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.4 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.5 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.6 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.9 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
iv
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SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Annex 4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3-1
Exhibit A Form of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X-0
Xxxxxxx X-0 Form of Notation on Security Relating to Guarantee . . . . . . . . . . . . . . . . . . . . . . A-1-1
Exhibit B Form of Transferee Letter of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C Form of Certification to be given by the Holders of Beneficial Interest in a
Temporary Regulation S Global Security to Euroclear or CEDEL . . . . . . . . . . . . . . . C-1
Exhibit D Form of Certification to be given by Euroclear Operator or CEDEL Bank, Societe
Anonyme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E Form of Certification to be given by Transferee of Beneficial Interest in a
Temporary Regulation S Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F Form of Certification for Transfer or Exchange of Restricted Global Security to
Temporary Regulation S Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
Exhibit G Form of Certification for Transfer or Exchange of Restricted Global Security to
Temporary Regulation S Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
Exhibit H Form of Certification for Transfer or Exchange of Temporary Regulation S
Security or Permanent Regulation S Global Security to Restricted Global
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
Exhibit I-1 Form of Certification for Transfer or Exchange of Non-Global Restricted Security
to Restricted Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1-1
Exhibit I-2 Form of Certification for Transfer or Exchange of Non-Global Restricted Security
to Permanent Regulation S Global Security or Temporary Regulation S Global
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X-0-0
Xxxxxxx X-0 Form of Certification for Transfer or Exchange of Non-Global Permanent
Regulation S Security to Restricted Global Security . . . . . . . . . . . . . . . . . . . X-0-0
Xxxxxxx X-0 Form of Certification for Transfer or Exchange of Non-Global Permanent
Regulation S Security to Permanent Regulation S Global Security . . . . . . . . . . . . . J-2-1
-----------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
a part of this Indenture.
v
8
INDENTURE, dated as of March 15, 1997, among CHESAPEAKE ENERGY
CORPORATION, an Oklahoma corporation (the "Company"), the SUBSIDIARY GUARANTORS
listed as signatories hereto, and UNITED STATES TRUST COMPANY OF NEW YORK, a
New York corporation, as Trustee.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Company's 8 1/2% Series
A Senior Notes due 2012 (the "Series A Notes") and 8 1/2% Series B Senior Notes
due 2012 (the "Series B Notes", and together with the Series A Notes, the
"Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Adjusted Consolidated Net Tangible Assets" means, without
duplication, as of the date of determination, (a) the sum of (i) discounted
future net revenue from proved oil and gas reserves of the Company and its
Restricted Subsidiaries calculated in accordance with SEC guidelines before any
state or federal income taxes, as estimated by independent petroleum engineers
in a reserve report prepared as of the end of the Company's most recently
completed fiscal year, as increased by, as of the date of determination, the
discounted future net revenue of (A) estimated proved oil and gas reserves of
the Company and its Restricted Subsidiaries attributable to any acquisition
consummated since the date of such year-end reserve report, and (B) estimated
oil and gas reserves of the Company and its Restricted Subsidiaries
attributable to extensions, discoveries and other additions and upward
revisions of estimates of proved oil and gas reserves due to exploration,
development or exploitation, production or other activities conducted or
otherwise occurring since the date of such year-end reserve report, which, in
the case of sub-clauses (A) and (B), would, in accordance with standard
industry practice, result in such increases as calculated in accordance with
SEC guidelines (utilizing the prices utilized in such year-end reserve report),
and decreased by, as of the date of determination, the discounted future net
revenue of (C) estimated proved oil and gas reserves of the Company and its
Restricted Subsidiaries produced or disposed of since the date of such year-end
reserve report and (D) reductions in the estimated oil and gas reserves of the
Company and its Restricted Subsidiaries since the date of such year-end reserve
report attributable to downward revisions of estimates of proved oil and gas
reserves due to exploration, development or exploitation, production or other
activities conducted or otherwise occurring since the date of such year-end
reserve report which, in the case of sub-clauses (C) and (D), would, in
accordance with standard industry practice, result in such decreases as
calculated in accordance with SEC guidelines (utilizing the prices utilized in
such year-end reserve report); provided that, in the case of each of the
determinations made pursuant to clauses (A) through (D), such increases and
decreases shall be as estimated by the Company's engineers, (ii) the
capitalized costs that are attributable to oil and gas properties of the
Company and its Restricted Subsidiaries to which no proved oil and gas
reserves are attributable, based on the Company's books and records as of a
date no earlier than the date of the Company's latest annual or quarterly
financial statements, (iii) the Net Working Capital on a date
9
no earlier than the date of the Company's latest annual or quarterly financial
statements and (iv) the greater of (I) the net book value on a date no earlier
than the date of the Company's latest annual or quarterly financial statements
and (II) the appraised value, as estimated by independent appraisers, of other
tangible assets (including Investments in unconsolidated Subsidiaries) of the
Company and its Restricted Subsidiaries, as of a date no earlier than the date
of the Company's latest audited financial statements, minus (b) the sum of (i)
minority interests, (ii) any gas balancing liabilities of the Company and its
Restricted Subsidiaries reflected in the Company's latest annual or quarterly
financial statements, (iii) the discounted future net revenue, calculated in
accordance with SEC guidelines (utilizing the prices utilized in the Company's
year-end reserve report), attributable to reserves which are required to be
delivered to third parties to fully satisfy the obligations of the Company and
its Restricted Subsidiaries with respect to Volumetric Production Payments on
the schedules specified with respect thereto, (iv) the discounted future net
revenue, calculated in accordance with SEC guidelines, attributable to reserves
subject to Dollar-Denominated Production Payments which, based on the estimates
of production included in determining the discounted future net revenue
specified in (a) (i) above (utilizing the same prices utilized in the Company's
year-end reserve report), would be necessary to fully satisfy the payment
obligations of the Company and its Restricted Subsidiaries with respect to
Dollar-Denominated Production Payments on the schedules specified with respect
thereto and (v) the discounted future net revenue, calculated in accordance
with SEC guidelines (utilizing the same prices utilized in the Company's
year-end reserve report), attributable to reserves subject to participation
interests, overriding royalty interests or other interests of third parties,
pursuant to participation, partnership, vendor financing or other agreements
then in effect, or which otherwise are required to be delivered to third
parties. If the Company changes its method of accounting from the full cost
method to the successful efforts method or a similar method of accounting,
Adjusted Consolidated Net Tangible Assets will continue to be calculated as if
the Company were still using the full cost method of accounting.
"Adjusted Net Assets of a Subsidiary Guarantor" at any date shall mean
the lesser of (i) the amount by which the fair value of the property 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 the Guarantee of such Subsidiary Guarantor at such
date and (ii) the amount by which the present fair saleable value of the assets
of such Subsidiary Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Subsidiary Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any Subsidiary of such Subsidiary Guarantor in respect of the obligations of
such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through
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the ownership of Voting Stock, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Member" means any member of, or participant in, the Depository.
"Attributable Indebtedness" means, with respect to any particular
lease under which any Person is at the time liable and at any date as of which
the amount thereof is to be determined, the present value of the total net
amount of rent required to be paid by such Person under the lease during the
primary term thereof, without giving effect to any renewals at the option of
the lessee, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of the lease. As used in
the preceding sentence, the net amount of rent under any lease for any such
period shall mean the sum of rental and other payments required to be paid with
respect to such period by the lessee thereunder excluding any amounts required
to be paid by such lessee on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges. In the case of any lease
which is terminable by the lessee upon payment of a penalty, such net amount of
rent shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors or the managing partner(s)
of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security represented by a Global
Security and registered in the name of the nominee of the Depository.
"Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading and which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or the equivalents (however designated) of corporate
stock or partnership interests and any and all warrants, options and rights
with respect thereto (whether or not currently exercisable), including each
class of common stock and preferred stock of such Person.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for
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financial reporting purposes in accordance with GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CEDEL" means Cedel Bank, Societe Anonyme (or any successor securities
clearing agency).
"Company" means the party named as such above, until a successor
replaces such Person in accordance with the terms of this Indenture, and
thereafter means such successor.
"Currency Hedge Obligations" means, at any time as to the Company and
its Restricted Subsidiaries, the obligations of such Person at such time that
were incurred in the ordinary course of business pursuant to any foreign
currency exchange agreement, option or futures contract or other similar
agreement or arrangement designed to protect against or manage such Person's or
any of its Subsidiaries' exposure to fluctuations in foreign currency exchange
rates.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Book-Entry Securities, The
Depository Trust Company or another person designated as Depository by the
Company, which must be a clearing agency registered under the Exchange Act.
"Dollar-Denominated Production Payments" mean production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Euroclear" means the Euroclear clearance system (or any successor
securities clearing agency).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder.
"Exchange Offer" means the registration by the Company under the
Securities Act of all the Series B Notes pursuant to a registration statement
under which the Company offers each Holder of Series A Notes the opportunity to
exchange all Series A Notes held by such Holder for Series B Notes in an
aggregate principal amount equal to the aggregate principal amount of Series A
Notes held by such Holder, all in accordance with the terms and conditions of
the Registration Rights Agreement.
"Foreign Subsidiary" means a Subsidiary that is incorporated in a
jurisdiction other than the United States of America or a State thereof or the
District of Columbia and with respect to which more than 80% of any of its
sales, earnings or assets (determined on a consolidated basis in
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12
accordance with GAAP) are located in, generated from or derived from operations
located in territories outside the United States of America and jurisdictions
outside the United States of America.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of the Issue Date.
"Global Security" means a Security evidencing all or a part of the
Securities to be issued as Book-Entry Securities, issued to the Depository in
accordance with Section 2.2, that bears the legend referred to in footnote 1 of
the form of Security attached hereto as Exhibit A.
"Guarantee" means, individually and collectively, the guarantees given
by the Subsidiary Guarantors pursuant to Article Ten hereof, including a
notation in the Securities substantially in the form attached hereto as Exhibit
A-1.
"Holder" means a Person in whose name a Security is registered on the
Registrar's books.
"Indebtedness" means, without duplication, with respect to any Person,
(a) all obligations of such Person (i) in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) representing the balance deferred and unpaid of the
purchase price of any property or services (other than accounts payable or
other obligations arising in the ordinary course of business), (iv) evidenced
by bankers' acceptances or similar instruments issued or accepted by banks, (v)
for the payment of money relating to a Capitalized Lease Obligation, or (vi)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit; (b) all net obligations of such Person in
respect of Currency Hedge Obligations, Interest Rate Hedge Agreements and Oil
and Gas Hedging Contracts, except to the extent such net obligations are taken
into account in the determination of future net revenues from proved oil and
gas reserves for purposes of the calculation of Adjusted Consolidated Net
Tangible Assets; (c) all liabilities of others of the kind described in the
preceding clauses (a) or (b) that such Person has guaranteed or that are
otherwise its legal liability (including, with respect to any Production
Payment, any warranties or guaranties of production or payment by such Person
with respect to such Production Payment but excluding other contractual
obligations of such Person with respect to such Production Payment); (d)
Indebtedness (as otherwise defined in this definition) of another Person
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person, the amount of such obligations being deemed to be
the lesser of (1) the full amount of such obligations so secured, and (2) the
fair market value of such asset, as determined in good faith by the Board of
Directors of such Person, which determination shall be evidenced by a Board
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Resolution, and (e) any and all deferrals, renewals, extensions, refinancings
and refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c), (d) or this clause (e), whether or not between or among
the same parties. Subject to clause (c) of the preceding sentence, neither
Dollar-Denominated Production Payments nor Volumetric Production Payments shall
be deemed to be Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchasers" means, collectively, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Bear, Xxxxxxx & Co. Inc., Xxxxxx Brothers Inc. and X.X.
Xxxxxx Securities Inc.
"Interest Rate Hedging Agreements" means, with respect to the Company
and its Restricted Subsidiaries, the obligations of such Person under (i)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (ii) other agreements or arrangements designed to protect
such Person or any of its Subsidiaries against fluctuations in interest rates.
"Issue Date" means March 17, 1997.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statute or statutes) of any jurisdiction).
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Make-Whole Amount" with respect to a Security means an amount equal
to the excess, if any, of (i) the present value of the remaining interest,
premium and principal payments due on such Security as if such Security were
redeemed on March 15, 2004, computed using a discount rate equal to the
Treasury Rate plus 25 basis points, over (ii) the outstanding principal amount
of such Security. As used herein, "Treasury Rate" is defined as the yield to
maturity at the time of the computation of United States Treasury securities
with a constant maturity (as compiled by and published in the most recent
Federal Reserve Statistical Release H.15 (519), which has become publicly
available at least two Business Days prior to the date of the redemption notice
or, if such Statistical Release is no longer published, any publicly available
source of similar market data) most nearly equal to the then remaining maturity
of the Securities assuming redemption of the Securities on March 15, 2004;
provided, however, that if the Make-Whole Average Life of such Security is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given,
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the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the Make-
Whole Average Life of such Securities is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used. As used herein, "Make-Whole
Average Life" means the number of years (calculated to the nearest one-twelfth)
between the date of redemption and March 15, 2004.
"Maturity Date" means March 15, 2012.
"Net Working Capital" means (i) all current assets of the Company and
its Restricted Subsidiaries, minus (ii) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness.
"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, with respect to any Person, a
certificate signed by two Officers or by an Officer and either a Secretary,
Assistant Secretary or Assistant Treasurer of such Person. One of the Officers
signing an Officers' Certificate given pursuant to Section 4.3(a) shall be the
principal executive, financial or accounting officer of the Person delivering
such certificate.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case , that is
designed to provide protection against oil and gas price fluctuations.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company (or any Subsidiary Guarantor, if applicable) or the
Trustee.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges
or levies on the property of the Company or any Restricted Subsidiary if the
same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside
on the books of the Company;
(b) Liens imposed by law, such as carriers',
warehousemen's, landlords' and mechanics' liens and other similar liens arising
in the ordinary course of business which secure obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on the books of the Company;
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(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character and which
do not in any material way affect the marketability of the same or interfere
with the use thereof in the ordinary course of business of the Company and the
Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar
agreements in respect of obligations which are not yet due or which are being
contested in good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases,
production sharing contracts and petroleum concession agreements and licenses
for bonus or rental payments and for compliance with the terms of such leases,
contracts, agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas
and/or mineral leases, production sharing contracts, petroleum concession
agreements and licenses, farm-out agreements, division orders, contracts for
the sale, purchase, exchange, processing or transportation of oil, gas and/or
other hydrocarbons, unitization and pooling declarations and agreements,
operating agreements, development agreements, area of mutual interest
agreements, and other agreements which are customary in the oil, gas and other
mineral exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
(h) Liens on personal property (excluding the Capital
Stock of any Restricted Subsidiary) securing Indebtedness of the Company or any
Restricted Subsidiary other than Funded Indebtedness; and
(i) Liens imposed by law or order as a result of any
proceeding before any court or regulatory body that is being contested in good
faith, and Liens which secure a judgment or other court-ordered award or
settlement as to which the Company has not exhausted its appellate rights.
"Pari Passu Indebtedness" means any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred, or
assumed unless such Indebtedness is contractually subordinate or junior in
right of payment of principal, premium and interest to the Securities.
"Pari Passu Indebtedness of a Subsidiary Guarantor" means any
Indebtedness of such Subsidiary Guarantor, whether outstanding on the Issue
Date or thereafter created, incurred, or
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16
assumed unless such Indebtedness is contractually subordinate or junior in
right of payment of principal, premium and interest to the Guarantees.
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 12, 1997, by and among the Company, the Subsidiary
Guarantors and each of the purchasers named on the signature pages thereto, as
such agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Restricted Security" has the meaning provided in Rule 144(a)(3) under
the Securities Act.
"Restricted Subsidiary" means any Subsidiary of the Company which owns
or leases (as lessor or lessee) (i) any property owned or leased by the Company
or any Subsidiary, or any interest of the Company or any Subsidiary in property
located within the United States of America or Canada (including property
located off the coast of the United States of America or Canada held pursuant
to lease from any federal, state, provincial or other governmental body) which
is considered by the Company to be capable of producing oil or gas or minerals
in commercial quantities and (ii) any processing or manufacturing plant or
pipeline owned or leased by the Company or any Subsidiary and located within
the United States of America or Canada, except any processing or manufacturing
plant or pipeline, or portion thereof, which the Board of Directors declares is
not material to the business of the Company and its Subsidiaries taken as a
whole.
"Sale/Leaseback Transaction" means with respect to the Company or any
of its Restricted Subsidiaries, any arrangement with any Person providing for
the leasing by the Company or any of its Restricted Subsidiaries of any
principal property, acquired or placed into service more than 180 days prior to
such arrangement, whereby such property has been or is to be sold or
transferred by the Company or any of its Restricted Subsidiaries to such
Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Notes and the Series B Notes.
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17
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to
the Global Securities and any successor entity thereto.
"Series A Notes" means the Company's 8 1/2% Series A Senior Notes due
2012, as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Series B Notes" means the Company's 8 1/2% Series B Senior Notes due
2012, as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture in exchange for the Series A
Notes in the Exchange Offer.
"Subordinated Indebtedness of a Subsidiary Guarantor" means any
Indebtedness of such Subsidiary Guarantor, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, which is contractually
subordinate or junior in right of payment of principal, premium and interest to
the Guarantees.
"Subordinated Indebtedness of the Company" means any Indebtedness of
the Company, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, which is contractually subordinate or junior in right of
payment of principal, premium and interest to the Securities.
"Subsidiary" means any subsidiary of the Company. A "subsidiary" of
any Person means (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 of such Person,
(ii) a partnership in which such Person or a subsidiary of such Person is, at
the date of determination, a general or limited partner of such partnership,
but only if such Person or its subsidiary is entitled to receive more than
fifty percent of the assets of such partnership upon its dissolution, or (iii)
any other Person (other than a corporation or partnership) in which such
Person, directly or indirectly, at the date of determination thereof, has (x)
at least a majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of such Person.
"Subsidiary Guarantor" means (i) each of the Subsidiaries that becomes
a guarantor of the Securities in compliance with the provisions of Article Ten
of this Indenture and (ii) each of the Subsidiaries executing a supplemental
indenture in which such Subsidiary agrees to be bound by the terms of this
Indenture.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.7 in
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exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.3.
"Transferee Certificate" means the Transferee Letter of Representation
attached as Exhibit B to this Indenture.
"Trust Officer" means any officer or assistant officer within the
corporate trust department of the Trustee assigned by the Trustee to administer
its corporate trust matters.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"U.S. Government Securities" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof.
"U.S. Legal Tender" means such coin or currency of the United States
as at the time of payment shall be legal tender for the payment of public and
private debts.
"Volumetric Production Payments" mean production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of contingency) to vote in the election of members of the Board
of Directors or other governing body of such Person.
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SECTION 1.2 Other Definitions.
Term Defined in Section
"Applicable Procedures" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6(g)
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12
"Depository Securities Certification" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
"Make-Whole Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8
"Owner Securities Certification" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Payment Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Permanent Regulation S Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Restricted Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Restricted Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Temporary Regulation S Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Transferee Securities Certification" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6(g)
SECTION 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, if used in this Indenture, have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the Securities or the
Guarantees.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words
in the plural include the singular;
(v) any gender used in this Indenture shall be deemed to
include the neuter, masculine or feminine genders;
(vi) provisions apply to successive events and
transactions; and
(vii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other Subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Securities and the certificate of authentication, and the notation
on the Securities relating to the Guarantee, shall be substantially in the
forms of Exhibits A and A-1, respectively. The Securities may also have such
insertions, omissions, substitutions and variations as are required or as may
be permitted by or consistent with this Indenture. The provisions of Exhibits
A and A-1 are part of this Indenture. The Securities may have notations,
legends and endorsements required by law or stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities and the
Guarantee shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Subsidiary
Guarantors, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
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Securities offered and sold in their initial distribution in reliance on
Regulation S may be initially issued in the form of temporary Global Securities
in fully registered form without interest coupons, substantially in the form of
Exhibit A, with such applicable legends as are provided for in Exhibit A
hereto. Such temporary Global Securities may be registered in the name of the
Depository or its nominee and deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit by the Depository to the respective accounts
of the beneficial owners of the Securities represented thereby (or such other
accounts as they may direct), provided that upon such deposit all such
Securities shall be credited to or through accounts maintained at the
Depository by or on behalf of Euroclear or CEDEL. Until such time as the
Restricted Period (as defined below) shall have expired, any such temporary
Global Securities, together with their Successor Securities which are Global
Securities other than the Restricted Global Security, shall each be referred to
herein as a "Temporary Regulation S Global Security." After such time as the
Restricted Period shall have expired and the certifications referred to in the
next succeeding paragraph shall have been provided, interests in such Temporary
Regulation S Global Securities shall be exchanged for interests in like Global
Securities, each referred to herein collectively as a "Permanent Regulation S
Global Security," substantially in the form of Security set forth in Exhibit A,
with such applicable legends as are provided for in Exhibit A. Such Permanent
Regulation S Global Securities shall be registered in the name of the
Depository or its nominee and deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit to the respective accounts of the beneficial
owners of the Securities represented thereby (or such other accounts as they
may direct). The aggregate principal amount of the Temporary Regulation S
Global Security or the Permanent Regulation S Global Security may be increased
or decreased from time to time by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided. As used
herein, the term "Restricted Period" means the period of 40 days commencing on
the day after the latest of (a) the day on which the Securities are first
offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (b) the Issue Date.
Interests in a Temporary Regulation S Global Security may be exchanged
for interests in a Permanent Regulation S Global Security only after (a) the
expiration of the Restricted Period, (b) delivery by a beneficial owner of an
interest therein to Euroclear or CEDEL of a written certification (an "Owner
Securities Certification") substantially in the form of Exhibit C hereto, and
(c) upon delivery by Euroclear or CEDEL to the Trustee of a written
certification (a "Depository Securities Certification") substantially in the
form attached hereto as Exhibit D. Upon satisfaction of such conditions, the
Trustee will exchange the portion of the Temporary Regulation S Global Security
covered by such certification for interests in a Permanent Regulation S Global
Security. The delivery by such Holder of a beneficial interest in such
Temporary Regulation S Global Security of such certification shall constitute
an irrevocable instruction by such holder to Euroclear or CEDEL, as the case
may be, to exchange such Holder's beneficial interest in the Temporary
Regulation S Global Security for a beneficial interest in the Permanent
Regulation S Global Security upon the expiration of the Restricted Period in
accordance with the next succeeding paragraph.
Upon:
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(i) the expiration of the Restricted Period;
(ii) receipt by Euroclear or CEDEL, as the case
may be, of Owner Securities Certifications described in the
preceding paragraph;
(iii) receipt by the Depository of:
(1) written instructions given in accordance with
the Applicable Procedures from an Agent Member directing the
Depository to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in a Permanent
Regulation S Global Security in a principal amount equal to
that of the beneficial interest in a corresponding Temporary
Regulation S Global Security for which the necessary
certifications have been delivered; and
(2) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member, and the Euroclear or CEDEL
account for which such Agent Member's account is held, to be
credited with, and the account of the Agent Member to be
debited for, such beneficial interest; and
(iv) receipt by the Trustee of notification from
the Depository of the transactions described in (iii) above and from
Euroclear or CEDEL, as the case may be, of Depository Securities
Certifications,
the Trustee, as Registrar (as defined below), shall instruct the Depository to
reduce the principal amount of such Temporary Regulation S Global Security and
to increase the principal amount of such Permanent Regulation S Global
Security, by the principal amount of the beneficial interest in such Temporary
Regulation S Global Security to be so transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in such Permanent Regulation S Global Security having a
principal amount equal to the amount by which the principal amount of such
Temporary Regulation S Global Security was reduced upon such transfer.
Securities offered and sold in their initial distribution in reliance
on Rule 144A under the Securities Act and other than in reliance on Rule 144A
under the Securities Act or Regulation S shall be issued in the form of one or
more Global Securities (collectively, and, together with their Successor
Securities, the "Restricted Global Security") in fully registered form without
interest coupons, substantially in the form of Security set forth in Exhibit A
hereto, with such applicable legends as are provided for in Exhibit A except as
otherwise permitted herein. Such Restricted Global Security shall be
registered in the name of the Depository or its nominee and deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit by the
Depository to the respective accounts of beneficial owners of the securities
represented thereby (or such other accounts as they may direct).
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The aggregate principal amount of the Restricted Global Security may be
increased or decreased from time to time by adjustments made on the records of
the Trustee, as custodian for the Depository, in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Temporary Regulation S Global Security or the Permanent Regulation S Global
Security, as hereinafter provided.
SECTION 2.2 Execution and Authentication.
Two Officers of the Company shall sign the Securities on behalf of the
Company, and one Officer of each Subsidiary Guarantor shall sign the notation
on the Securities relating to the Guarantee of such Subsidiary Guarantor on
behalf of such Subsidiary Guarantor, in each case by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities.
If an Officer of the Company or any Subsidiary Guarantor whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee or an authenticating agent shall authenticate Securities
for original issue in the aggregate principal amount of $150,000,000 upon a
written order of the Company signed by two Officers of the Company. The
aggregate principal amount of Securities outstanding at any time may not exceed
$150,000,000.
Series B Notes may be issued only in exchange for a like principal
amount of Series A Notes pursuant to an Exchange Offer.
The principal and interest on Book-Entry Securities shall be payable
to the Depository or its nominee, as the case may be, as the sole registered
owner and the sole holder of the Book-Entry Securities represented thereby.
The principal and interest on Securities in certificated form shall be payable
at the office of the Paying Agent.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so except on original issuance. 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
the Company or its Affiliates.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
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If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that shall represent and shall be in
minimum denominations of $1,000.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where the Securities
may be presented for registration of transfer or for exchange (the "Registrar")
and an office or agency where Securities may be presented for payment (the
"Paying Agent"). The Registrar shall keep a register of the Securities and of
their transfer and exchange. Where the Trustee is acting as or has been
appointed Registrar and/or Paying Agent, the Company may appoint one or more
co- registrars and one or more additional paying agents with the prior consent
of the Trustee, whose consent shall not be unreasonably withheld. The term
"Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. Such agency agreement shall provide for
reasonable compensation for such services. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent and shall furnish
the Trustee with an executed counterpart of any such agency agreement. If the
Company fails to maintain or act as Registrar or Paying Agent, the Trustee
shall act as such and shall be duly compensated therefor.
The Registrar or a co-registrar and a Paying Agent shall be maintained
by the Company in the Borough of Manhattan, the City of New York. The Company
initially designates the Trustee as the Registrar and Paying Agent.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Securities Custodian with respect to the Global
Securities.
SECTION 2.4 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the payment of principal of, premium, if any, or interest on
the Securities (whether such money shall have been paid to it by the Company or
any Subsidiary Guarantor), and to notify the Trustee of any Default by the
Company or any Subsidiary Guarantor in making any such payment. While any such
Default continues, the Trustee may require the Paying Agent to pay all money
held by it to the Trustee. Except as provided in the immediately preceding
sentence, the Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed and, if the
Company requires such payment, the Company shall give prior notice to the
Trustee and provide appropriate money transfer instructions to the Paying
Agent. Upon such payment over to the Trustee and accounting for any funds
disbursed, such Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts
as Paying Agent,
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it shall segregate and hold as separate trust funds for the benefit of the
Holders all money held by it as Paying Agent.
SECTION 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish or cause to be furnished to the
Trustee at least ten Business Days prior to each semiannual 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 Holders, and the Company shall otherwise comply with TIA
Section 312(a).
SECTION 2.6 Transfer and Exchange.
(a) Beneficial interests in a Global Security may,
subject to the restrictions on the transferability of the Securities and upon
delivery of a certificate in the form of Exhibit B hereto be exchanged for
certificated Securities upon request but only upon at least 20 days' prior
written notice given to the Trustee by or on behalf of the Depository (in
accordance with the Depository's customary procedures) and will bear the
applicable legends set forth in Exhibit A hereto.
(b) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depository or its nominee to the Trustee, as Registrar, for exchange or
cancellation as provided in this Article II. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article II or, if the Trustee is acting as
custodian for the Depository or its nominee (or is party to a similar
arrangement) with respect to such Global Security, the principal amount thereof
shall be reduced or increased by an amount equal to the portion thereof to be
so exchanged or cancelled, or the principal amount of such other Security to be
so exchanged for a beneficial interest therein, as the case may be, in each
case by means of an appropriate adjustment made on the records of the Trustee,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depository or its authorized representatives to make a
corresponding adjustment to its records (including by crediting or debiting any
Agent Member's account as necessary to reflect any transfer or exchange of a
beneficial interest). Upon any such surrender or adjustment of a Global
Security, the Trustee shall, subject to this Article II, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may
be directed by, the Depository or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph or in clause (r) below, the Company shall
promptly make available to the Trustee a reasonable supply of Securities that
are not in the form of Global Securities. The Trustee shall be entitled to
rely upon any order, direction or request of the
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Depository or its authorized representative which is given or made pursuant to
this Article II if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(c) Subject to the provisions in the legends required by
this Indenture, the registered Holder may grant proxies and otherwise authorize
any Person, including Agent Members and Persons who may hold interests in Agent
Members to take any action that such Holder is entitled to take under this
Indenture.
(d) Neither Agent Members nor any other Person on whose
behalf Agent Members may act shall have any rights under this Indenture with
respect to any Global Security held on their behalf by the Depository or under
the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practice
governing the exercise of the rights of a Holder of any Security. With respect
to any Global Security deposited with the Trustee as custodian for the
Depository for credit to their respective accounts (or to such other accounts
as they may direct) at Euroclear or CEDEL, the provisions of the "Operating
Procedures of the Euroclear System" and the "Terms and Conditions Governing Use
of Euroclear," and the "Management Regulations" and "Instructions to
Participants" of CEDEL, respectively, shall be applicable to such Global
Security.
(e) Upon presentation for transfer and exchange of any
Security at the office of the Trustee, as Registrar, located in The City of New
York, accompanied by a written instrument of transfer or exchange in the form
approved by the Company (it being understood that, until notice to the contrary
is given to holders of Securities, the Company shall be deemed to have approved
the form of instrument of transfer or exchange, if any, printed on any
Security), executed by the registered Holder, in person or by such Holder's
attorney thereunto duly authorized in writing, and upon compliance with this
Section 2.6, such Security shall be transferred upon the Register, and a new
Security shall be authenticated and issued in the name of the transferee.
Notwithstanding any provision to the contrary herein or in the Securities,
transfers of a Global Security, in whole or in part, and transfers of interests
therein of the kind described in this Section 2.6, shall only be made in
accordance with this Section 2.6. Transfers and exchanges subject to this
Section 2.6 shall also be subject to the other provisions of this Indenture
that are not inconsistent with this Section 2.6.
(f) General. A Global Security may not be transferred,
in whole or in part, to any Person other than the Depository or a nominee
thereof, and no such transfer to any such other Person may be registered;
provided, however, that this clause (f) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is not itself a
Global Security. No transfer of a Security to any Person shall be effective
under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this clause (f) shall
prohibit or
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render ineffective any transfer of a beneficial interest in a Global Security
effected in accordance with the other provisions of this Section 2.6.
(g) Temporary Regulation S Global Security. If the
holder of a beneficial interest in a Temporary Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in such Temporary
Regulation S Global Security, such transfer may be effected, subject to the
rules and procedures of the Depository, Euroclear and CEDEL, in each case to
the extent applicable and as in effect from time to time (the "Applicable
Procedures"), only in accordance with this clause (g). Upon delivery (i) by a
beneficial owner of an interest in a Temporary Regulation S Global Security to
Euroclear or CEDEL, as the case may be, of an Owner Securities Certification,
(ii) by the transferee of such beneficial interest in the Temporary Regulation
S Global Security to Euroclear or CEDEL, as the case may be, of a written
certification (a "Transferee Securities Certification") substantially in the
form of Exhibit E hereto and (iii) by Euroclear or CEDEL, as the case may be,
to the Trustee, as Registrar, of a Depository Securities Certification, the
Trustee may direct either Euroclear or CEDEL, as the case may be, to reflect on
its records the transfer of a beneficial interest in the Temporary Regulation S
Global Security from the beneficial owner providing the Owner Securities
Certification to the Person providing the Transferee Securities Certification.
(h) Restricted Global Security to Temporary Regulation S
Global Security. If the holder of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Temporary Regulation S Global Security, such transfer may be effected, subject
to the Applicable Procedures, only in accordance with the provisions of this
clause (h) and clause (n) below. Upon receipt by the Trustee, as Registrar, of
(A) written instructions given by or on behalf of the Depository in accordance
with the Applicable Procedures directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in the
Temporary Regulation S Global Security in a specified principal amount and to
cause to be debited from another specified Agent Member's account a beneficial
interest in the Restricted Global Security in an equal principal amount and (B)
a certificate in substantially the form set forth in Exhibit F hereto signed by
or on behalf of the holder of such beneficial interest in the Restricted Global
Security, the Trustee, as Registrar, shall, subject to clause (n) below, reduce
the principal amount of the Restricted Global Security, and increase the
principal amount of the Temporary Regulation S Global Security by such
specified principal amount.
(i) Restricted Global Security to Permanent Regulation S
Global Security. If the holder of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Permanent Regulation S Global Security, such transfer may be effected, subject
to the Applicable Procedures, only in accordance with this clause (i). Upon
receipt by the Trustee, as Registrar, of (A) written instructions given by or
on behalf of the Depository in accordance with the Applicable Procedures
directing the Trustee to credit or cause to be credited to a specified Agent
Member's account a beneficial interest in the Permanent Regulation S Global
Security in a specified principal
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amount and to cause to be debited from another specified Agent Member's account
a beneficial interest in the Restricted Global Security in an equal principal
amount and (B) a certificate in substantially the form set forth in Exhibit G
hereto signed by or on behalf of the holder of such beneficial interest in the
Restricted Global Security, the Trustee, as Registrar, shall reduce the
principal amount of a Restricted Global Security, and increase the principal
amount of the Permanent Regulation S Global Security by such specified
principal amount.
(j) Temporary Regulation S Global Security or Permanent
Regulation S Global Security to Restricted Global Security. If the holder of a
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security at any time, wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Restricted Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with this
clause (j) and clause (n) below; provided, that with respect to any transfer of
a beneficial interest in a Temporary Regulation S Global Security, the
transferor and Euroclear or CEDEL, as the case may be, must have previously
delivered an Owner Securities Certification and a Depository Securities
Certification respectively, with respect to such beneficial interest. Upon
receipt by the Trustee, as Registrar, of (A) written instructions given by or
on behalf of the Depository in accordance with the Applicable Procedures
directing the Trustee to credit or cause to be credited, to a specified Agent
Member's account a beneficial interest in the Restricted Global Security in a
specified principal amount and to cause to be debited from another specified
Agent Member's account a beneficial interest in the Temporary Regulation S
Global Security or the Permanent Regulation S Global Security, as the case may
be, in an equal principal amount and (B) a certificate in substantially the
form set forth in Exhibit H signed by or on behalf of the holder of such
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security, as the case may be, the Trustee, as
Security Registrar, shall, subject to clause (n) below, reduce the principal
amount of such Temporary Regulation S Global Security or Permanent Regulation S
Global Security, as the case may be, and increase the principal amount of the
Restricted Global Security by such specified principal amount.
(k) Non-Global Restricted Security to Restricted Global
Security. If the holder of a Restricted Security (other than a Global
Security) wishes at any time to transfer all or any portion of such Security to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security, the Temporary Regulation S Global
Security or the Permanent Regulation S Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with this
clause (k) and clause (n) below. Upon receipt by the Trustee, as Registrar, of
(A) such Security and written instructions given by or on behalf of such Holder
as provided in this Section 2.6 directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in the
Restricted Global Security, the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security, as the case may be, in a specified
principal amount equal to the principal amount of the Restricted Security (or
portion thereof) to be so transferred, and (B) an appropriately completed
certificate substantially in the form set forth in Exhibit I-1 hereto, if the
specified account is to be credited with a beneficial interest in the
Restricted Global Security, or Exhibit I-2 herein, if the specified account is
to be
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credited with a beneficial interest in the Temporary Regulation S Global
Security or the Permanent Regulation S Global Security, signed by or on behalf
of such Holder, then the Trustee, as Registrar, shall, subject to clause (n)
below, cancel such Restricted Security (and issue a new Security in respect of
any untransferred portion thereof) as provided in this Section 2.6 and increase
the principal amount of the Restricted Global Security, Temporary Regulation S
Global Security or Permanent Regulation S Global Security, as the case may be,
by the specified principal amount.
(l) Non-Global Permanent Regulation S Security to
Restricted Global Security or Permanent Regulation S Global Security. If the
Holder of a Permanent Regulation S Security (other than a Global Security)
wishes at any time to transfer all or any portion of such Security to a Person
who wishes to take delivery thereof in the form of a beneficial interest in the
Restricted Global Security or the Permanent Regulation S Global Security, as
the case may be, such transfer may be effected only in accordance with this
clause (1) and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Registrar, of (A) such Security and instructions given by or on
behalf of such Holder as provided in this Section 2.6 directing the Trustee to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Security or the Permanent
Regulation S Global Security, as the case may be, in a principal amount equal
to the principal amount of the Security (or portion thereof) to be so
transferred, and (B) (i) with respect to a transfer which is to be delivered in
the form of a beneficial interest in the Restricted Global Security, a
certificate in substantially the form set forth in Exhibit J-1 hereto, signed
by or on behalf of such Holder, and (ii) with respect to a transfer which is to
be delivered in the form of a beneficial interest in the Permanent Regulation S
Global Security, a certificate in substantially the form set forth in Exhibit
J-2 hereto, signed by or on behalf of such Holder, then the Trustee, as
Registrar, shall, subject to clause (q) below, cancel such Security (and issue
a new Security in respect of any untransferred portion thereof) as provided in
this Section 2.6 and increase the principal amount of the Restricted Global
Security, or the Permanent Regulation S Global Security, as the case may be, by
the specified principal.
(m) Other Exchanges. Securities that are not Global
Securities may be exchanged (on transfer or otherwise) for Securities that are
not Global Securities or for beneficial interests in a Global Security (if any
is then outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (f) through (l) above
(including the certification requirements intended to insure that transfers of
beneficial interests in a Global Security comply with Rule 144A under the
Securities Act or Regulation S, as the case may be) and any Applicable
Procedures, as may from time to time be adopted by the Company and the Trustee.
(n) Interests in Temporary Regulation S Global Security
to be Held Through Euroclear or CEDEL. Until the later of the expiration of
the Restricted Period and the provision of the Owner Securities Certification
and the Depository Securities Certification, beneficial interests in any
Temporary Regulation S Global Security may be held only in or through accounts
maintained at the Depository by Euroclear or CEDEL (or by Agent Members acting
for the account thereof).
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(o) When Securities in certificated form are presented to
the Registrar with a request to register the transfer of such Securities or to
exchange such Securities for an equal principal amount of Securities of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made 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 exchanges or transfers pursuant to
Sections 2.2, 2.10, 3.7 or 9.5). The Registrar shall not be required to
register the transfer of or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Security being redeemed in
part.
(p) If a Series A Note is a Restricted Security in
certificated form, then as provided in this Indenture and subject to the
limitations herein set forth, the Holder, provided it is a Qualified
Institutional Buyer or an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act), may exchange such
Security for a Book-Entry Security by instructing the Trustee (by completing
the Transferee Certificate in the form of Exhibit B hereto) to arrange for such
Series A Note to be represented by a beneficial interest in a Global Security
in accordance with the customary procedures of the Depository.
(q) Upon any exchange provided for in Section 2.6(a), the
Company shall execute and the Trustee shall authenticate, and deliver to the
person specified by the Depository a new Series A Note or Notes registered in
such names and in such authorized denominations as the Depository, pursuant to
the instructions of the beneficial owner of the Securities requesting the
exchange, shall instruct the Trustee. Thereupon, the beneficial ownership of
such Global Security shown on the records maintained by the Depository or its
nominee shall be reduced by the amounts so exchanged and an appropriate
endorsement be made by and on behalf of the Trustee on the Global Security.
Any such exchange shall be effected through the Depository in accordance with
the procedures of the Depository therefor.
(r) Notwithstanding the foregoing, no Global Security
shall be registered for transfer or exchange, or authenticated and delivered,
whether pursuant to this Section, Section 2.7, 2.10 or 3.7 or otherwise , in
the name of a person other than the Depository for such Global Security or its
nominee until (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or if at any time the
Depository ceases to be a clearing agency registered under the Exchange Act,
and a successor depository is not appointed by the Company within 30 days, (ii)
the Company executes and delivers to the Trustee a Company order
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that all such Global Securities shall be exchangeable or (iii) there shall have
occurred and be continuing an Event of Default. Upon the occurrence in respect
of any Global Security representing the Series A Notes of any one or more of
the conditions specified in clause (i), (ii) or (iii) of the preceding
sentence, such Global Security may be registered for transfer or exchange for
Series A Notes registered in the names of, authenticated and delivered to, such
persons as the Trustee or the Depository, as the case may be, shall direct.
(s) Except as provided above, any Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, any Global Security, whether pursuant to this Section 2.7, 2.10 or 3.7 or
otherwise, shall also be a Global Security and bear the legend specified in
footnote 1 to Exhibit A.
SECTION 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of the Trustee are met. An indemnity bond may be
required by the Trustee, the Company or any Subsidiary Guarantor that is
sufficient in the judgment of the Company, the Subsidiary Guarantors and the
Trustee to protect the Company, the Subsidiary Guarantors, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge for its expenses (including fees and expenses of the
Trustee) in replacing a Security.
SECTION 2.8 Outstanding Securities.
Senior Notes outstanding at any time are all Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section 2.8 as not outstanding. Except as set forth in Section 2.9, a
Security does not cease to be outstanding because the Company, the Subsidiary
Guarantors or any of their respective Subsidiaries or Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1, it ceases to be outstanding and interest on it ceases to accrue.
SECTION 2.9 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary Guarantor or an Affiliate of the Company shall
be considered as though they are not outstanding,
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except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and, upon written order of the Company, the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate and deliver definitive
Securities in exchange for a like principal amount of temporary Securities
surrendered to it. Until so exchanged, temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.11 Cancellation.
The Company or any Subsidiary Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration, transfer, exchange, payment or cancellation and shall destroy
canceled Securities unless the Company directs their return to the Company.
Except as provided in Section 2.7, the Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation.
Securities that are redeemed by the Company or that are otherwise
acquired by the Company, will be surrendered to the Trustee for cancellation.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay, or cause the Paying Agent to pay, the defaulted interest in any
lawful manner (plus interest on such defaulted interest to the extent lawful)
(taken together, the "Defaulted Interest") to the persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Securities and in Section 4.1 hereof. At least 15 days before the special
record date, the Company shall mail to each Holder a notice stating the special
record date, the payment date and the amount of Defaulted Interest to be paid.
In the event that the Company has elected to cause a Paying Agent to pay the
Defaulted Interest, the Company shall so notify the Paying Agent at least 15
days before the special record date, which notice shall also set forth the
special record date, the payment date and the aggregate amount of Defaulted
Interest to be paid. At least five days before such payment date, the Company
shall deposit with the Paying Agent money sufficient to pay all of the
Defaulted Interest on the payment date therefor and instruct the Paying Agent
in writing to pay to specified Holders on the payment date. On the payment
date, the Paying Agent shall make the payments in accordance with
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the Company's written instructions from funds deposited with the Paying Agent
for the purpose of making such Defaulted Interest payments.
SECTION 2.13 Persons Deemed Owners.
The Company, the Trustee, any Paying Agent and any authenticating
agent may treat the Person in whose name any Security (including, without
limitation, any Global Security) is registered as the owner of such Security
for the purpose of receiving payments of principal of, premium, if any, or
interest on such Security and for all other purposes. None of the Company, the
Trustee, any Paying Agent or any authenticating agent shall be affected by any
notice to the contrary.
ARTICLE III
REDEMPTION
SECTION 3.1 Notice to Trustee.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of Paragraphs 6, 7 or 8 of the Securities, it shall
furnish to the Trustee and the Registrar, at least 45 days but not more than 60
days before the redemption date (unless the Trustee consents to a shorter
period in writing), an Officers' Certificate setting forth the redemption date,
the principal amount of Securities to be redeemed and the redemption price,
including the detail of the calculation of the Make-Whole Price, if applicable.
SECTION 3.2 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select the Securities to be redeemed pro rata, by lot or, if the
Securities are listed on any securities exchange, by any other method that the
Trustee considers fair and appropriate and that complies with the requirements
of such exchange; provided, however, that no Securities with a principal amount
of $1,000 or less will be redeemed in part. The Trustee shall make the
selection from outstanding Securities not previously called for redemption not
less than 30 nor more than 45 days prior to the redemption date. Securities
and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities selected for redemption.
SECTION 3.3 Notice of Redemption.
(a) At least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first-class
mail to each Holder of Securities to be redeemed at such Holder's registered
address.
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(i) The notice shall identify the Securities to
be redeemed and shall state:
(ii) the redemption date;
(iii) the redemption price;
(iv) the aggregate principal amount of Securities
being redeemed;
(v) the name and address of the Paying Agent;
(vi) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such
notice to collect the redemption price;
(vii) that, unless the Company defaults in the
payment of the redemption price or accrued interest, interest on
Securities called for redemption ceases to accrue on and after the
redemption date and the only remaining right of the Holders is to
receive payment of the redemption prices in respect of the Securities
upon surrender to the Paying Agent of the Securities;
(viii) if any Security is being redeemed in part,
the portion of the principal amount of such Security to be redeemed
and that, after the redemption date, upon surrender of such Security,
a new Security or Securities in principal amount equal to the
unredeemed portion will be issued in the name of the Holder thereof
upon cancellation of the Security or Securities being redeemed;
(ix) the paragraph of the Securities pursuant to
which the Securities called for redemption are being redeemed; and
(x) the CUSIP number of the Securities.
(b) At the Company's request, the Trustee shall give the
notice of redemption required in Section 3.3(a) in the Company's name and at
the Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the redemption date (unless the Trustee
consents to a shorter notice period in writing), an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in Section 3.3(a).
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3,
Securities called for redemption become due and payable on the redemption date
at the redemption price. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price, plus accrued and unpaid interest to the
redemption date.
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SECTION 3.5 Deposit of Redemption Price.
Prior to the redemption date, the Company shall deposit with the
Paying Agent funds available on the redemption date sufficient to pay the
redemption price of, and accrued and unpaid interest on, the Securities to be
redeemed on that date. The Paying Agent shall promptly return to the Company
any money so deposited which is not required for that purpose upon the written
request of the Company, except with respect to monies owed as obligations to
the Trustee pursuant to Article Seven.
If any Security called for redemption shall not be so paid upon
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will continue to be payable on the unpaid principal and
premium, if any, including from the redemption date until such principal and
premium, if any, is paid, and, to the extent lawful, on any interest not paid
on such unpaid principal, in each case at the rate provided in the Securities
and in Section 4.01 hereof.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder, at the
expense of the Company, a new Security equal in aggregate amount to the
unredeemed portion of the Security surrendered.
SECTION 3.7 Optional Redemption.
Except as set forth in Section 3.8 hereof, the Company shall not have
the option to redeem the Securities pursuant to this Section 3.7 prior to March
15, 2004. The Securities may be redeemed at the option of the Company, in
whole or from time to time in part, at any time on or after March 15, 2004, at
the redemption prices set forth below (expressed as a percentage of the
principal amount of the Securities to be redeemed), together with accrued and
unpaid interest on the Securities so
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redeemed to the redemption date, if redeemed during the 12-month period
commencing on March 15 of the years indicated below:
Redemption
Year Price
---- -----
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.25%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.40%
2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.55%
2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.70%
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.85%
2009 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.00%
Any redemption pursuant to this Section 3.7 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.1 through 3.6
hereof.
SECTION 3.8 Optional Redemption at Make-Whole Price.
At any time prior to March 15, 2004, the Company may, at its option,
redeem all or any portion of the Securities at the "Make-Whole Price"
(hereinafter defined) plus accrued and unpaid interest to the date of
redemption. For purposes hereof, the term "Make-Whole Price" means the greater
of (i) the sum of (A) the outstanding principal amount of the Securities plus
(B) the Make-Whole Amount and (ii) the redemption price (expressed as a
percentage of the principal amount) of the Securities on March 15, 2004 set
forth in Section 3.7.
Any redemption pursuant to this Section 3.8 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.1 through 3.6
hereof.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest
on, the Securities on the dates and in the manner provided in the Securities
and this Indenture. Principal, premium and interest shall be considered paid
on the date due if the Trustee or Paying Agent holds on that date money
deposited by the Company designated for and sufficient to pay all principal,
premium and interest then due. All references to interest in this Indenture
shall for all purposes be deemed to include any additional interest payable as
Liquidated Damages pursuant to the Registration Rights Agreement.
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The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal, and premium, if
any, at the rate borne by the Securities to the extent lawful; and it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.2 SEC Reports.
(a) The Company, within 15 days after it files the same
with the SEC, shall deliver to Holders, copies of the annual reports and the
information, documents and other reports (or copies of any such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC and provide Holders with such annual
reports and such information, documents and other reports specified in Sections
13 and 15(d) of the Exchange Act. The Company and each Subsidiary Guarantor
shall also comply with the provisions of TIA Section 314(a).
(b) The Company may request the Trustee on behalf of the
Company at the Company's expense to mail the foregoing to Holders. In such
case, the Company shall provide the Trustee with a sufficient number of copies
of all reports and other documents and information that the Trustee may be
required to deliver to Holders under this Section.
SECTION 4.3 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an Officers' Certificate
substantially in the form of Annex 4.3 hereto, stating that a review of the
activities of the Company and the Subsidiaries during the preceding fiscal year
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 and each Subsidiary Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall 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) and that to the best of such Officer's knowledge, after
reasonable inquiry, no event has occurred and remains in existence by reason of
which payments on account of the principal of, premium, if any, or interest, if
any, on the Securities are prohibited or, if such event has occurred, a
description of the event and what action the Company and the Subsidiary
Guarantors are taking or propose to take with respect thereto. Such Officers'
Certificate shall comply with TIA Section 314(a)(4). The Company hereby
represents that, as of the Issue Date, its fiscal year ends June 30, and hereby
covenants that it shall notify the Trustee at least 30 days in advance of any
change in its fiscal year.
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(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.2 shall be
accompanied by a written statement of the Company's independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Sections 4.7, 4.8, 4.9 or 4.10 of this
Indenture (to the extent such provisions relate to accounting matters) or, if
any such violation has occurred, specifying the nature and period of existence
thereof. Where such financial statements are not accompanied by such a written
statement, the Company shall furnish the Trustee with an Officers' Certificate
stating that any such written statement would be contrary to the then current
recommendations of the American Institute of Certified Public Accountants.
(c) The Company and the Subsidiary Guarantors will, so
long as any of the Securities are outstanding, deliver to the Trustee forthwith
upon any Officer becoming aware of any Default or Event of Default or default
in the performance of any covenant, agreement or condition contained in this
Indenture, an Officers' Certificate specifying such Default or Event of Default
and what action the Company or any Subsidiary Guarantor proposes to take with
respect thereto.
SECTION 4.4 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2. If at any time the Company
shall fail to maintain any required office or agency or shall fail to furnish
the Trustee with the address thereof, such surrenders, presentations, notices
and demands may be made or served at the corporate trust office of the Trustee.
Subject to Section 2.3, the Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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SECTION 4.5 Corporate Existence.
The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each Subsidiary and all rights
(charter and statutory) and franchises of the Company and the Subsidiaries;
provided, that the Company shall not be required to preserve the corporate
existence of any Subsidiary, or any such right or franchise, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.6 Waiver of Stay, Extension or Usury Laws.
The Company and each Subsidiary Guarantor 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, which would prohibit or forgive the
Company or any Subsidiary Guarantor from paying all or any portion of the
principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of the Company and the Subsidiary Guarantors
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.7 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 4.8 Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or held
for use in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order (ordinary wear
and tear excepted) and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation
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or maintenance of any such property, or disposing of it, if such discontinuance
or disposal is, in the judgment of the Company, desirable in the conduct of its
business and not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided,
for itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company, are adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry.
SECTION 4.9 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, issue, assume or guarantee any Indebtedness for borrowed money secured by
any Lien on any property or asset now owned or hereafter acquired by the
Company or such Restricted Subsidiary without making effective provision
whereby any and all Securities then or thereafter outstanding will be secured
by a Lien equally and ratably with any and all other obligations thereby
secured for so long as any such obligations shall be so secured.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may,
without so securing the Securities, issue, assume or guarantee Indebtedness
secured by the following Liens:
(a) Liens existing on the Issue Date or provided for
under the terms of agreements existing on the Issue Date (including, without
limitation, the Lien provided for pursuant to Section 7.7);
(b) Liens on property securing (i) all or any portion of
the cost of exploration, drilling or development of such property, (ii) all or
any portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used or to
be used in connection with such property or (iii) Indebtedness incurred by the
Company or any Restricted Subsidiary to provide funds for the activities set
forth in clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted
Subsidiary to the Company or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition
of such property by the Company or a Subsidiary or Liens on the property of any
corporation or other entity existing at the time such corporation or other
entity becomes a Restricted Subsidiary of the Company or is merged with the
Company in compliance with Article V hereof and in either case not incurred as
a result of (or in connection with or in anticipation of) the acquisition of
such property or such corporation or other entity becoming a Restricted
Subsidiary of the Company or being merged with the Company,
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provided that such Liens do not extend to or cover any property or assets of
the Company or any of its Restricted Subsidiaries other than the property so
acquired;
(e) Liens on any property securing (i) Indebtedness
incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or (ii) Indebtedness issued or guaranteed by the United States
or any State thereof or any department, agency or instrumentality of either,
(f) any Lien extending, renewing or replacing (or
successive extensions, renewals or replacements of) any Lien of any type
permitted under clauses (a) through (e) above, provided that such Lien extends
to or covers only the property that is subject to the Lien being extended,
renewed or replaced;
(g) any Ordinary Course Lien arising, but only so long as
continuing, in the ordinary course of business of the Company and the
Restricted Subsidiaries;
(h) any Lien resulting from the deposit of moneys or
evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of
the Company or any Restricted Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise
permitted under clauses (a) through (h) above) securing Indebtedness of the
Company or any Restricted Subsidiary in an aggregate principal amount which,
together with the aggregate amount of Attributable Indebtedness deemed to be
outstanding in respect of all Sale/Leaseback Transactions entered into pursuant
to clause (a) of Section 4.10 (exclusive of any such Sale/Leaseback
Transactions otherwise permitted under clauses (a) through (h) above), does not
at the time such Indebtedness is incurred exceed 15% of Adjusted Consolidated
Net Tangible Assets.
The following types of transactions will not be prohibited or
otherwise limited by this Section 4.9: (i) the sale, granting of Liens with
respect to, or other transfer of, crude oil, natural gas or other petroleum
hydrocarbons in place for a period of time until, or in an amount such that,
the transferee will realize therefrom a specified amount (however determined)
of money or of such crude oil, natural gas or other petroleum hydrocarbons;
(ii) the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment, overriding royalty,
forward sale or similar interest; (iii) the entering into of Currency Hedge
Obligations, Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts
although Liens securing any Indebtedness for borrowed money that is the subject
of any such obligation shall not be permitted hereby unless permitted under
clauses (a) through (i) above; and (iv) the granting of Liens required by any
contract or statute in order to permit the Company or any Restricted Subsidiary
to perform any contract or subcontract made by it with or at the request of the
United States or any State thereof or any department, agency or instrumentality
of either, or to secure partial, progress, advance or other payments to the
Company or any Restricted Subsidiary by such governmental unit pursuant to the
provisions of any contract or statute.
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SECTION 4.10 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with any person (other than the
Company or a Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be
entitled to incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction, secured by a Lien
on the property subject to such Sale/Leaseback Transaction pursuant to the
covenant described in Section 4.9 without equally and ratably securing the
Securities pursuant to such covenant;
(b) after the Issue Date and within a period commencing
six months prior to the consummation of such Sale/Leaseback Transaction and
ending six months after the consummation thereof, the Company or such
Restricted Subsidiary shall have expended for property used or to be used in
the ordinary course of business of the Company and the Restricted Subsidiaries
(including amounts expended for the exploration, drilling or development
thereof, and for additions, alterations, repairs and improvements thereto) an
amount equal to all or a portion of the net proceeds of such Sale/Leaseback
Transaction and the Company shall have elected to designate such amount as a
credit against such Sale/Leaseback Transaction (with any such amount not being
so designated to be applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the
effective date of such Sale/Leaseback Transaction, shall have applied to the
voluntary defeasance or retirement of Securities or any Pari Passu Indebtedness
an amount equal to the greater of the net proceeds of the sale or transfer of
the property leased in such Sale/Leaseback Transaction and the fair value, as
determined by the Board of Directors of the Company, of such property at the
time of entering into such Sale/Leaseback Transaction (in either case adjusted
to reflect the remaining term of the lease and any amount expended by the
Company as set forth in clause (b) above), less an amount equal to the
principal amount of Securities and Pari Passu Indebtedness voluntarily defeased
or retired by the Company within such 12-month period and not designated as a
credit against any other Sale/Leaseback Transaction entered into by the Company
or any Restricted Subsidiary during such period.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc.
The Company shall not consolidate with or merge with any Person or
convey, transfer or lease all or substantially all of its assets to any Person,
unless:
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(i) the Company survives such merger or the
Person formed by such consolidation or into which the Company is
merged or that acquires by conveyance or transfer, or which leases,
all or substantially all of the assets of the Company is a corporation
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia or of Canada or any
province thereof and expressly assumes, by supplemental indenture, the
due and punctual payment of the principal of, premium, if any, and
interest on, all the Securities and the performance of every other
covenant and obligation of the Company under this Indenture; and
(ii) immediately before and after giving effect to
such transaction no Default or Event of Default exists.
In connection with any consolidation, merger, conveyance, transfer or
lease contemplated by this Section 5.1, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this
Indenture.
SECTION 5.2 Successor Corporation Substituted.
Upon any consolidation, merger, lease, conveyance or transfer in
accordance with Section 5.1, the Trustee shall be notified by the Company and
the successor Person, and the successor Person formed by such consolidation or
into which the Company is merged or to which such lease, conveyance or transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein and thereafter (except in the
case of a lease) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
An "Event of Default" occurs upon:
(1) default by the Company or any Subsidiary
Guarantor in the payment of principal of, or premium, if any,
on the Securities when due and payable at maturity, upon
acceleration or otherwise;
(2) default by the Company or any Subsidiary
Guarantor in the payment of any installment of interest on the
Securities when due and payable and continuance of such
default for 30 days;
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(3) default by the Company or any Subsidiary
Guarantor in the deposit of any optional redemption payment,
when and as due and payable pursuant to Article Three;
(4) default on any other Indebtedness of the
Company, any Subsidiary Guarantor or any other Restricted
Subsidiary if either (A) such default results in the
acceleration of the maturity of any such Indebtedness having a
principal amount of $10.0 million or more individually or,
taken together with the principal amount of any other such
Indebtedness the maturity of which has been so accelerated, in
the aggregate, or (B) such default results from the failure to
pay when due principal of, premium, if any, or interest on,
any such Indebtedness, after giving effect to any applicable
grace period (a "Payment Default"), having a principal amount
of $10.0 million or more individually or, taken together with
the principal amount of any other Indebtedness under which
there has been a Payment Default, in the aggregate;
(5) default in the performance, or breach of, the
covenants set forth in Article V, or in the performance, or
breach of, any other covenant or agreement of the Company or
any Subsidiary Guarantor in this Indenture and failure to
remedy such default within a period of 45 days after written
notice thereof from the Trustee or Holders of 25% of the
principal amount of the outstanding Securities;
(6) the entry by a court of one or more judgments
or orders for the payment of money against the Company, any
Subsidiary Guarantor or any other Restricted Subsidiary in an
aggregate amount in excess of $10.0 million (net of applicable
insurance coverage by a third party insurer which is
acknowledged in writing by such insurer) that has not been
vacated, discharged, satisfied or stayed pending appeal within
60 days from the entry thereof;
(7) a Guarantee by a Subsidiary Guarantor shall
cease to be in full force and effect (other than a release of
a Guarantee in accordance with Section 10.4) or any Subsidiary
Guarantor shall deny or disaffirm its obligations with respect
thereto;
(8) the Company or any Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or
proceeding,
(B) consents to the entry of an order
for relief against it in an involuntary case or proceeding,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
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(D) makes a general assignment for the
benefit of its creditors, or
(E) admits in writing that it generally
is unable to pay its debts as the same become due; or
(9) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief (with respect to the
petition commencing such case) against the Company or any
Restricted Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company
or any Restricted Subsidiary or for all or substantially all
of its property, or
(C) orders the liquidation of the
Company or any Restricted Subsidiary, and the order or decree remains unstayed
and in effect for 60 days. The term "Bankruptcy Law" means Title 11, U.S. Code
or any similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses 8 or 9) under Section 6.1 occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% of the principal
amount of the outstanding Securities may declare the unpaid principal of and
premium, if any, or the Change of Control purchase price if the Event of
Default includes failure to pay the Change of Control purchase price, and
accrued and unpaid interest on, all the Securities then outstanding to be due
and payable, by a notice in writing to the Company (and to the Trustee, if
given by Holders), and upon any such declaration such principal, premium, if
any, and accrued and unpaid interest shall become immediately due and payable,
notwithstanding anything contained in this Indenture or the Securities to the
contrary. If an Event of Default specified in clauses 8 or 9 above occurs, all
unpaid principal of, and premium, if any, and accrued and unpaid interest on,
the Securities then outstanding will become due and payable, without any
declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority of the principal amount of the outstanding
Securities, by written notice to the Company, the Subsidiary Guarantors and the
Trustee, may rescind and annul a declaration of acceleration and its
consequences if (1) the Company or any Subsidiary Guarantor has paid or
deposited with such Trustee a sum sufficient to pay (A) all overdue
installments of interest
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on all the Securities, (B) the principal of, and premium, if any, on any
Securities that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
the Securities, (C) to the extent that payment of such interest is lawful,
interest on the defaulted interest at the rate or rates prescribed therefor in
the Securities, and (D) all money paid or advanced by the Trustee thereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; (2) all Events of Default, other than the
non-payment of the principal of any Securities that have become due solely by
such declaration of acceleration, have been cured or waived as provided in this
Indenture; and (3) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction. No such rescission will affect
any subsequent Event of Default or impair any right consequent thereon.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may, but
is not obligated to, pursue, in its own name and as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of principal or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture. If an Event
of Default specified under clauses (8) or (9) of Section 6.1 occurs with
respect to the Company at a time when the Company is the Paying Agent, the
Trustee shall automatically assume the duties of Paying Agent. The Trustee may
maintain a proceeding even if it does not possess any of the Securities or does
not produce any of them in the proceeding. A delay or omission by the Trustee
or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults.
Subject to Sections 6.7 and 9.2, the Holders of at least a majority of
the principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default or Event of Default in payment of principal or interest on the
Securities, including any optional redemption payments or Change of Control or
Net Proceeds Offer payments.
SECTION 6.5 Control by Majority.
The Holders of a majority in principal amount of the Securities 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 such Trustee, provided that (1) such direction is not in
conflict with any rule of law or with this Indenture and (2) the Trustee may
take any other action deemed proper by such Trustee that is not inconsistent
with such direction.
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SECTION 6.6 Limitation on Remedies.
No Holder of any of the Securities will have any right to institute
any proceeding, judicial or otherwise, or for the appointment of a receiver or
trustee or pursue any remedy under this Indenture, unless:
(1) such Holder has previously given notice to
the Trustee of a continuing Event of Default,
(2) the Holders of not less than 25% of the
principal amount of the outstanding Securities have made
written request to such Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
under this Indenture,
(3) such Holder or Holders have offered to such
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request,
(4) such Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any proceeding, and
(5) no direction inconsistent with such written
request has been given to such Trustee during such 60-day
period by the Holders of a majority of the principal amount of
the outstanding Securities.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over other Holders.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the Holder of
any Securities will have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Securities on the
stated maturity therefor and to institute suit for the enforcement of any such
payment, and such right may not be impaired without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or
interest specified in Section 6.1(1), (2) or (3) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any Subsidiary Guarantor for the whole amount of
principal, premium, if any, and interest remaining unpaid with respect to the
Securities, and interest on overdue principal and premium, if any, and, to the
extent lawful, interest on overdue interest, and such further amounts as shall
be sufficient to cover the costs and expenses
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of collection, including the reasonable compensation and expenses of the
Trustee, its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
(a) The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders allowed in any judicial proceedings
relative to the Company, the Subsidiary Guarantors, their creditors or their
property and may collect and receive any money or securities or other property
payable or deliverable on any such claims and to distribute the same.
(b) Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities.
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ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such rights and powers vested in it by
this Indenture and use the same degree of care and skill in such exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties
that are specifically set forth (or incorporated by reference) in this
Indenture and no others.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine
such certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(iii) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(iv) This paragraph (c) does not limit the effect
of paragraph (b) of this Section.
(v) The Trustee shall not be liable for any error
of judgment made in good faith by an officer of the Trustee, unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts.
(vi) The Trustee shall not be liable with respect
to action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5, and the Trustee
shall be entitled from time to time to request such a direction.
(b) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(c) The Trustee shall be under no obligation and may
refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability or expense. No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the
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exercise of any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, to the extent reasonably required by such inquiry or
investigation.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or
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any prospectus, offering or solicitation documents, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 7.5 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder pursuant to Section 11.2 a
notice of the Default within 90 days after it occurs. Except in the case of a
Default in any payment on any Security, the Trustee may withhold the notice if
and so long as the board of directors, executive committee or a trust committee
of officers in good faith determines that withholding the notice is in the
interests of Holders.
SECTION 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Holder a brief
report dated as of such May 15 that complies with TIA Section 313(a), but only
if such report is required in any year under TIA Section 313(a). The Trustee
also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Company shall notify the Trustee in writing when the Securities become
listed on any national securities exchange or of any delisting thereof.
SECTION 7.7 Compensation and Indemnity.
The Company and the Subsidiary Guarantors jointly and severally agree
to pay the Trustee from time to time reasonable compensation for its services
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Company and the
Subsidiary Guarantors jointly and severally agree to reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred by it. Such expenses shall include when applicable the reasonable
compensation and expenses of the Trustee's agents and counsel.
The Trustee shall not be under any obligation to institute any suit,
or take any remedial action under this Indenture, or to enter any appearance or
in any way defend any suit in which it may be a defendant, or to take any steps
in the execution of the trusts created hereby or thereby or in the enforcement
of any rights and powers under this Indenture, until it shall be indemnified to
its satisfaction against any and all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provisions of
this Indenture, including compensation for services, costs, expenses, outlays,
counsel fees and other disbursements, and against all liability not due to its
negligence or willful misconduct. The Company and the Subsidiary Guarantors
jointly and severally agree to indemnify the Trustee against any loss,
liability or expenses incurred by it arising out of or in connection with the
acceptance and administration of the trust and its duties
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hereunder as Trustee, Registrar and/or Paying Agent, including the costs and
expenses of enforcing this Indenture against the Company (including with
respect to this Section 7.7) and of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company and the Subsidiary
Guarantors of any claim for which it may seek indemnity; however, unless the
position of the Company is prejudiced by such failure, the failure of the
Trustee to promptly notify the Company shall not limit its right to
indemnification. The Company shall defend each such claim and the Trustee
shall cooperate in the defense. The Trustee may retain separate counsel and
the Company shall reimburse the Trustee for the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent. Neither the Company nor the Subsidiary Guarantors shall be obligated
to reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through the Trustee's negligence or willful misconduct. To secure
the payment obligations of the Company and the Subsidiary Guarantors in this
Section, the Trustee shall have a claim prior to that of the Holders of the
Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest on particular Securities.
The Trustee's right to receive payment of any amounts due under this Section
7.7 shall not be subordinate to any other liability or Indebtedness of the
Company. When the Trustee incurs expenses or renders services after the
occurrence of any Event of Default specified in Sections 6.1(8) or (9), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
(i) The Trustee may resign by so notifying the
Company and the Subsidiary Guarantors. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so
notifying the Trustee, in writing. The Company may remove the Trustee
if:
(ii) the Trustee fails to comply with Section 7.1;
(iii) the Trustee is adjudged a bankrupt or an
insolvent;
(iv) a receiver or other public officer takes
charge of the Trustee or its property; or
(v) the Trustee becomes incapable of acting as
Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the
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successor Trustee takes office, the Holders of a majority in principal amount
of the Securities may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Subsidiary
Guarantors. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee
shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply
with TIA Section 310(a)(5).
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided such corporation or association shall be otherwise eligible and
qualified under this Article.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee which satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall also comply
with TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, with respect
to the Securities, elect to exercise its rights pursuant to either Section 8.2
or 8.3 with respect to all outstanding Securities upon compliance with the
conditions set forth below in this Article Eight.
SECTION 8.2 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company and the Subsidiary Guarantors shall be deemed
to have been discharged from their obligations with respect to all outstanding
Securities on the date all conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in Section 8.4, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (b) the Company's obligations with
respect to such Securities under Sections 2.3, 2.4, 2.6, 2.7, 2.10 and 4.4, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith (including, but not limited
to, Section 7.7) and (d) this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 with respect
to the Securities.
SECTION 8.3 Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company shall be released from its
obligations under the covenants contained in Sections 4.7, 4.8, 4.9 and 4.10
and Article Five with respect to the outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this
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purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1(5),
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.1 of the option applicable to this Section 8.3,
Sections 6.1(4) through 6.1(9) shall not constitute Events of Default.
SECTION 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or cause
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the provisions of
this Article Eight applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (a) cash in
U.S. Legal Tender in an amount, or (b) non-callable U.S. Government Securities
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, cash in U.S. Legal Tender in an amount, or
(c) a combination thereof, in such amounts, as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, and interest
on the outstanding Securities on the Maturity Date or on the applicable
redemption date, as the case may be, of such principal or installment of
principal, premium, if any, or interest and in accordance with the terms of
this Indenture and of such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such non-
callable Government Securities to said payments with respect to the Securities.
(b) In the case of an election under Section 8.2, the
Company shall have delivered to the Trustee an Opinion of Counsel confirming
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) since the date hereof, there has been
a change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities 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;
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(c) In the case of an election under Section 8.3, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit
or, insofar as Subsection 6.1(8) or 6.1(9) is concerned, at any time in the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(e) Such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company is
a party or by which the Company is bound;
(f) In the case of any election under Section 8.2 or 8.3,
the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.2 or 8.3 was not made by the Company with the intent of preferring
the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and
(g) The Company shall 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 8.2 or the Covenant Defeasance under Section 8.3 (as the case may be)
have been complied with as contemplated by this Section 8.4.
SECTION 8.5 Deposited Money and U.S. Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all money and non-callable U.S. Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company or a Subsidiary
Guarantor, if any, acting as Paying Agent) as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable U.S.
Government Securities deposited pursuant to Section 8.4 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
Securities.
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Anything in this Article Eight to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable U.S. Government Securities held by it as
provided in Section 8.4 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.4(a)), are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6 Repayment to Company.
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, premium, if any,
or interest on any Security which is not subject to the last paragraph of
Section 8.5 and has remained unclaimed for one year after such principal, and
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Securities shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or non-callable U.S. Government Securities in accordance with Section
8.2 or 8.3, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining, or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.2 or 8.3, as
the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may amend or
supplement this Indenture or the Securities without notice to or consent of any
Holder:
(1) to cure any ambiguity, defect or
inconsistency;
(2) to comply with Section 5.1;
(3) to reflect the addition or release of any
Subsidiary Guarantor, as provided for by this Indenture;
(4) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA; or
(5) to make any change that would provide any
additional benefit or rights to the Holders or that does not
adversely affect the rights of any Holder in any material
respect.
Upon the request of the Company and the Subsidiary Guarantors,
accompanied by a Board Resolution of the Company and of each Subsidiary
Guarantor authorizing the execution of any such supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 9.6, the
Trustee shall join with the Company and the Subsidiary Guarantors in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and make any further appropriate agreements and stipulations
that may be therein contained. After an amendment or waiver under this Section
becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.2 With Consent of Holders.
Except as provided below in this Section 9.2, the Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the
Securities with the written consent (including consents obtained in connection
with a tender offer or exchange offer for Securities or a solicitation of
consents in respect of Securities, provided that in each case such offer or
solicitation is made to all Holders of then outstanding Securities on equal
terms) of the Holders of at least a majority of the principal amount of the
outstanding Securities.
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Upon the request of the Company and the Subsidiary Guarantors, accompanied by a
Board Resolution of the Company and each Subsidiary Guarantor authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders as aforesaid, and upon
receipt by the Trustee of the Opinion of Counsel described in Section 9.6, the
Trustee shall join with the Company and the Subsidiary Guarantors in the
execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof. The
Holders of a majority of the principal amount of the outstanding Securities may
waive compliance in a particular instance by the Company or the Subsidiary
Guarantors with any provision of this Indenture or the Securities (including
waivers obtained in connection with a tender offer or exchange offer for
Securities or a solicitation of consents in respect of Securities, provided
that in each case such offer or solicitation is made to all Holders of the then
outstanding Securities on equal terms). However, without the consent of each
Holder affected, an amendment or waiver under this Section may not:
(1) reduce the percentage of principal amount of
Securities whose Holders must consent to an amendment,
supplement or waiver of any provision of this Indenture or the
Securities;
(2) reduce the rate or change the time for
payment of interest, including default interest, on the
Securities;
(3) reduce the principal amount of any Security
or change the Maturity Date of the Securities;
(4) reduce the redemption price, including
premium, if any, payable upon the redemption of any Security
or change the time at which any Security may be redeemed;
(5) waive a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on
the Securities;
(6) make any Security payable in money other than
that stated in the Security;
(7) impair the right to institute suit for the
enforcement of principal of, premium, if any, or principal on
any Security pursuant to Sections 6.7 or 6.8, except as
limited by Section 6.6; or
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(8) make any change in Section 6.4 or Section 6.7
or in this sentence of this Section 9.2.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of this Indenture.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security.
However, until an amendment, supplement or waiver becomes effective, any such
Holder or subsequent Holder may revoke the consent as to its Security or
portion of a Security. For such revocation to be effective, the Trustee must
receive the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.5, or
(ii) such other date as the Company shall designate. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment or waiver or to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No consent
shall be valid or effective for more than 90 days after such record date unless
consent from the Holders of the principal amount of Securities required
hereunder for such amendment or waiver to be effective also shall have been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (i)
through (ix) of Section 9.2. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and
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every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 9.6 Trustee Protected.
The Trustee shall sign any amendment or supplement or waiver
authorized pursuant to this Article if the amendment or supplement or waiver
does not adversely affect the rights of the Trustee. If it does adversely
affect the rights of the Trustee, the Trustee may but need not sign it. In
signing such amendment or supplement or waiver the Trustee shall be entitled to
receive, and (subject to Article Seven) shall be fully protected in relying
upon, an Opinion of Counsel stating that such amendment or supplement or waiver
is authorized or permitted by and complies with this Indenture. The Company
may not sign an amendment or supplement until the Boards of Directors of the
Company and the Subsidiary Guarantors approve it.
ARTICLE X
GUARANTEES
SECTION 10.1 Unconditional Guarantee.
Each Subsidiary Guarantor hereby, jointly and severally,
unconditionally guarantees (such guarantee to be referred to herein as the
"Guarantee") to each Holder and to the Trustee the due and punctual payment of
the principal of, premium, if any, and interest on the Securities and all other
amounts due and payable under this Indenture and the Securities by the Company
whether at maturity, by acceleration, redemption, repurchase or otherwise,
including, without limitation, interest on the overdue principal of, premium,
if any, and interest on the Securities, to the extent lawful, all in accordance
with the terms hereof and thereof; subject, however, to the limitations set
forth in Section 10.5.
Failing payment when due of any amount 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 shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to
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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 diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and in this 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
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor agrees it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between
each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Guarantee.
SECTION 10.2 Subsidiary Guarantors May Consolidate, etc. on Certain Terms.
(a) Subject to paragraph (b) of this Section 10.2, no
Subsidiary Guarantor may consolidate or merge with or into (whether or not such
Subsidiary Guarantor is the surviving entity or Person) another corporation,
entity or Person unless (i) the entity or Person formed by or surviving any
such consolidation or merger (if other than such Subsidiary Guarantor) assumes
all the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture, in a form reasonably satisfactory to the Trustee, under the
Securities and this Indenture and (ii) immediately after such transaction, no
Default or Event of Default exists. In connection with any consolidation or
merger contemplated by this Section 10.2, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. This Section 10.2(a) will not prohibit a merger between Subsidiary
Guarantors or a merger between the Company and a Subsidiary Guarantor.
(b) In the event of a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the
Capital Stock of such Subsidiary Guarantor, then such Subsidiary Guarantor (in
the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the Capital Stock of such Subsidiary
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such Subsidiary
Guarantor) will be released and relieved of any obligations under its
Guarantees.
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SECTION 10.3 Addition of Subsidiary Guarantors.
(a) If any Subsidiary of the Company guarantees any
Funded Indebtedness of the Company at any time subsequent to the Issue Date,
then the Company shall (i) cause the Securities to be equally and ratably
guaranteed by such Subsidiary, but only to the extent that the Securities are
not already guaranteed by such Subsidiary on reasonably comparable terms and
(ii) cause such Subsidiary to execute and deliver a supplemental indenture, in
a form reasonably satisfactory to the Trustee, evidencing its provision of a
guarantee pursuant to the terms hereof.
(b) The Company agrees to cause each Subsidiary other
than a Foreign Subsidiary that shall become a Restricted Subsidiary after the
Issue Date to execute and deliver a supplemental indenture pursuant to which
such Restricted Subsidiary shall guarantee the payment of the Securities
pursuant to the terms hereof.
(c) Any Person that was not a Subsidiary Guarantor on the
Issue Date may become a Guarantor by executing and delivering to the Trustee
(i) a supplemental indenture in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Subsidiary Guarantor and (ii) an Opinion of
Counsel and Officers' Certificate to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion and provided that no
opinion need be rendered concerning the enforceability of the Guarantee).
SECTION 10.4 Release of a Subsidiary Guarantor.
(a) If, at any time while the Securities remain
outstanding, none of the Company's then outstanding Pari Passu Indebtedness
(other than the Securities) is guaranteed by a Restricted Subsidiary, such
Restricted Subsidiary shall be released and relieved of its obligations under
its Guarantee (which shall be terminated and cease to have any force and
effect). For purposes of this Section 10.4(a) only, other Pari Passu
Indebtedness shall not be deemed to be outstanding if, and as long as, all
conditions to defeasance thereof have been satisfied, pursuant to defeasance
provisions substantially similar to those set forth in Article Eight hereof.
(b) Upon the sale or disposition of a Subsidiary
Guarantor (or substantially all of its assets), which is otherwise in
compliance with the terms of this Indenture, including but not limited to the
provisions of Section 10.2, or if a Subsidiary ceases to be a Restricted
Subsidiary, such Subsidiary shall be released and relieved of its obligations
under its Guarantee (which shall terminate and cease to have any force and
effect). The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate and an Opinion of Counsel certifying that such sale or other
disposition or cessation was made by the Company in accordance with the
provisions of this Indenture.
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(c) Any Subsidiary Guarantor not so released pursuant to
this Article Ten remains liable for the full amount of principal of and
interest on the Securities as provided in this Article Ten.
SECTION 10.5 Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any federal or state law. To
effectuate the foregoing intention, the Holders and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of each Subsidiary Guarantor
under the Guarantee shall 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 Guarantor under its Guarantee or pursuant to Section
10.6, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. This Section 10.5 is for the benefit of the creditors of
each Subsidiary Guarantor, and, for purposes of applicable fraudulent transfer
and fraudulent conveyance law, any Indebtedness of a Subsidiary Guarantor
pursuant to a bank credit facility shall be deemed to have been incurred prior
to the incurrence by such Subsidiary Guarantor of its liability under the
Guarantee.
SECTION 10.6 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 the Guarantee, such Funding Guarantor shall 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 (including
the Funding Guarantor) for all payments, damages and expenses incurred by the
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to the
Guarantee.
SECTION 10.7 Execution and Delivery of Guarantee.
To further evidence the Guarantees set forth in Section 10.1, each
Subsidiary Guarantor hereby agrees that a notation relating to such Guarantee,
in substantially the form of Exhibit A-1, shall be endorsed on each Security
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of one Officer of each Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee set
forth in Section 10.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation relating to such Guarantee.
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If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Subsidiary
Guarantor's Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Subsidiary Guarantor.
SECTION 10.8 Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, that portion of such provision that is not invalid, illegal or
unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
Whether prior to or following the qualification of this Indenture
under the TIA, if any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of TIA Section 318(c) upon an
Indenture qualified under the TIA, the imposed duties shall control under this
Indenture.
SECTION 11.2 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by certified or registered mail (return
receipt requested), facsimile, telecopier or overnight air courier guaranteeing
next day delivery, addressed as follows:
If to the Company or any Subsidiary Guarantor:
Chesapeake Energy Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
United States Trust Company of New York
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000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
The Company or any Subsidiary Guarantor or the Trustee by notice to
the other may designate additional or different addresses for subsequent
notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if faxed or telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.
Any notice or communication mailed to a Holder shall be mailed by
first-class mail to the address for such Holder appearing on the registration
books of the Registrar and shall be sufficiently given to such Holder if so
mailed within the time prescribed. Failure to mail a notice or communication
to a Holder or any defect in it shall not affect its sufficiency with respect
to other Holders.
If a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it. If the Company or
any Subsidiary Guarantor mails notice or communications to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company
or such Subsidiary Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include
the statements set forth in Section 11.5) stating that, in the
opinion of the signers, the conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, such conditions precedent have been
complied with.
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SECTION 11.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the
opinion of each such person, such covenant or condition has
been complied with.
SECTION 11.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for actions taken by, or
meetings or consents of, Holders. The Registrar or Paying Agent may make
reasonable rules for its functions.
SECTION 11.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banks and
trust companies in The City of New York are not required by law or executive
order to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is not a Legal
Holiday, without additional interest.
SECTION 11.8 Governing Law.
THIS INDENTURE AND THE SENIOR NOTES AND THE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
60
68
SECTION 11.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, any Subsidiary Guarantor or any other
Subsidiary. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10 No Recourse Against Others.
All liability described in Paragraph 17 of the Securities of any
director, officer, employee or stockholder, as such, of the Company, the
Subsidiary Guarantors or the Trustee is waived and released.
SECTION 11.11 Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Securities and the Guarantees shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 11.12 Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
instrument.
SECTION 11.13 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
61
69
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
CHESAPEAKE ENERGY
CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chairman and Chief
Executive Officer
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
62
70
SUBSIDIARY GUARANTORS
CHESAPEAKE OPERATING, INC.
CHESAPEAKE GAS DEVELOPMENT
CORPORATION
For each of the above:
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHESAPEAKE EXPLORATION LIMITED
PARTNERSHIP
By: Chesapeake Operating, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
63
71
ANNEX 4.3
OFFICERS' CERTIFICATE OF NONDEFAULT
CHESAPEAKE ENERGY CORPORATION
This Officers' Certificate is provided pursuant to Section 4.03(a) of the
Indenture dated March 15, 1997 among Chesapeake Energy Corporation (the
"Company"), the Subsidiary Guarantors named therein and United States Trust
Company of New York, as Trustee (the "Indenture").
A review of the activities of the Company and the Subsidiaries during the
preceding fiscal year ended June 30, _________ has been made under the
supervision of the Officers signing below with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under
the Indenture. In addition, each such Officer signing this certificate states
that, to the best of such Officer's knowledge, the Company and each Subsidiary
Guarantor has kept, observed, performed and fulfilled each and every covenant
contained in the Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of the Indenture.
After reasonable inquiry, to the best of each such Officer's knowledge, no
event has occurred and remains in existence by reason of which payments on
account of the principal of, premium, if any, or interest, if any, on the
Senior Notes are prohibited. This Officers' Certificate is intended to comply
with TIA 314(a)(4).
Additionally, each Officer signing below has read each covenant or condition
set forth in the Indenture and has made such examination or investigation as is
necessary, in the opinion of each such Officer, to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, which examination or investigation was conducted in the course
of the Officers' routine operational management of the Company. In the opinion
of each such Officer, each such covenant or condition has been complied with.
EXECUTED THIS __________ day of ______________________, _________.
CHESAPEAKE ENERGY CORPORATION,
an Oklahoma corporation
*By:
------------------------------------
------------------------------------
4.3-1
72
By:
------------------------------------
------------------------------------
------------------------
* This certificate must be signed by the principal executive, financial or
accounting officer (as well as one other Officer).
4.3-2
73
EXHIBIT A
[FACE OF SECURITY]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OR A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] (1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
--------------------
(1) This paragraph should be included in any Global Security.
A-1
74
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 OF THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.] (2)
[THIS SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES
DESCRIBED IN SECTION 2.6 OF THE INDENTURE, INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF
AN INTEREST IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN
INTEREST IN A RESTRICTED GLOBAL SECURITY UNTIL AFTER THE LATER OF THE DATE OF
EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE OWNER SECURITIES
CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO SUCH
INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, TO
THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT U.S.
PERSONS.] (3)
[THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITY ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THE SECURITIES ARE REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF IS AVAILABLE.] (4)
--------------------
(2) This paragraph shall be included only if this Security is a
Restricted Security.
(3) This paragraph shall be included only if this Security is a
Temporary Regulation S Global Security.
(4) This paragraph shall be included only if this Security is a
Permanent Regulation S Global Security.
A-2
75
CHESAPEAKE ENERGY CORPORATION
8 1/2% SERIES [A/B] SENIOR NOTE DUE 2012
No. $_________
CUSIP No.________
Chesapeake Energy Corporation, an Oklahoma corporation, promises to
pay to _______________________ or registered assigns the principal sum of
_________________ Dollars on March 15, 2012.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 1997
Record Dates: March 1 and September 1
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[Seal] CHESAPEAKE ENERGY
CORPORATION
By:
-------------------------------
By:
-------------------------------
Certificate of Authentication:
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee, certifies that this is one of the [Global] (5)
Securities referred to in the within-mentioned Indenture.
By
-----------------------------------
Authorized Signatory
--------------------
(5) If the Security is issued in global form, insert the term
Global.
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[REVERSE OF SECURITY]
CHESAPEAKE ENERGY CORPORATION
8 1/2% SERIES [A/B] SENIOR NOTE DUE 2012
1. Interest. Chesapeake Energy Corporation, an Oklahoma
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at 8 1/2% per annum from the Issue Date until maturity. The
Company will pay interest semiannually on March 15 and September 15 of each
year (each an "Interest Payment Date"), or if any such day is not a Business
Day, on the next succeeding Business Day. Interest on the Securities will
accrue from the most recent Interest Payment Date on which interest has been
paid or, if no interest has been paid, from the Issue Date; provided, that if
there is no existing Default in the payment of interest, and if this Security
is authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be September 15, 1997. The Company shall pay interest on
overdue principal and premium, if any, from time to time on demand at a rate
equal to the interest rate on the Securities then in effect; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months. All references herein to interest shall include additional
interest, if any, payable as Liquidated Damages pursuant to the Registration
Rights Agreement.
2. Method of Payment. The Company will pay interest on the
Securities to the persons who are registered holders of Securities at the
close of business on the record date immediately preceding the Interest Payment
Date, even if such Securities are canceled after the record date and on or
before the Interest Payment Date. Holders must surrender Securities to the
Paying Agent to collect principal payments. The Company will pay principal of,
premium, if any, and interest on the Securities in money of the United States
of America that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay principal and interest by wire
transfer of Federal Funds, or interest by its check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying Agent
or to a Holder at the Holder's registered address. Notwithstanding the
foregoing, the Company shall pay or cause to be paid all amounts payable with
respect to Restricted Securities or non-DTC eligible Securities by wire
transfer of Federal funds to the account of the Holders of such Securities. If
this Security is a Global Security, all payments in respect of this Security
will be made to the Depository or its nominee in immediately available funds in
accordance with customary procedures established from time to time by the
Depository.
3. Paying Agent and Registrar. Initially, the Trustee will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
A-4
77
4. Indenture. The Company issued the Securities under an
Indenture, dated as of March 15, 1997 (the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and Holders are referred to the Indenture and such Act for a complete statement
of such terms. The Securities are limited to $150,000,000 aggregate principal
amount.
5. Ranking and Guarantees. The Securities are general senior
unsecured obligations of the Company. The Company's obligation to pay
principal, premium, if any, and interest with respect to the Securities is
unconditionally guaranteed on a senior basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Ten of the Indenture. Certain
limitations to the obligations of the Subsidiary Guarantors are set forth in
further detail in the Indenture.
6. Optional Redemption. At any time on or after March 15, 2004,
the Company may, at its option, redeem all or any portion of the Securities at
the redemption prices (expressed as a percentage of the principal amount of the
Securities to be redeemed) set forth below, plus, in each case, accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the 12-month period beginning March 15 of the years indicated below:
Year Price
---- -----
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.25%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.40%
2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.55%
2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.70%
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.85%
2009 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . 100.00%
Any redemption pursuant to this Paragraph 6 shall be made pursuant to the
provisions of Sections 3.1 through 3.6 of the Indenture.
7. Redemption at Make-Whole Price. At any time prior to
March 15, 2004, the Company may, at its option, redeem all or any portion of
the Securities at the Make-Whole Price plus accrued and unpaid interest to the
date of redemption. Any redemption pursuant to this Paragraph 7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 of the Indenture.
8. Notice of Redemption. Notice of redemption will be mailed to
the Holder's registered address at least 30 days but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed. If less
than all Securities are to be redeemed, the Trustee shall select pro
A-5
78
rata, by lot or, if the Securities are listed on any securities exchange, by
any other method that the Trustee considers fair and appropriate and that
complies with the requirements of such exchange; the Securities to be redeemed
in multiples of $1,000; provided, however, that no Securities with a principal
amount of $1,000 or less will be redeemed in part. Securities in denominations
larger than $1,000 may be redeemed in part. On and after the redemption date,
interest ceases to accrue on Securities or portions of them called for
redemption (unless the Company shall default in the payment of the redemption
price or accrued interest).
9. Restrictive Covenants. The Indenture imposes certain
limitations on, among other things, the ability of the Company to merge or
consolidate with any other Person or sell, lease or otherwise transfer all or
substantially all of its properties or assets, the ability of the Company or
the Restricted Subsidiaries to incur encumbrances against certain property or
enter into certain sale and leaseback transactions, all subject to certain
limitations described in the Indenture.
10. Denominations, Transfer, Exchange. The Securities shall be
issued in global form or in accordance with Section 2.6(f) of the Indenture, in
definite registered form, without coupons in denominations of $1,000 and whole
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
transfer or exchange any Securities selected for redemption. Also, it need not
transfer or exchange any Securities for a period of 15 days before a selection
of Securities to be redeemed.
11. Persons Deemed Owners. The registered Holder of a Security
may be treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to
the contrary.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee or Paying Agent will pay
the money back to the Company at its request. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
13. Amendment, Supplement, Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority of the outstanding principal amount of the
Securities, and any past default or noncompliance with any provision may be
waived with the consent of the Holders of a majority in principal amount of the
Securities. Without the consent of any Holder, the Company may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency or to make any change that does not adversely
affect the rights of any Holder.
14. Successor Corporation. When a successor corporation
assumes all the obligations of its predecessor under the Securities and the
Indenture, the predecessor corporation will be released from those obligations.
X-0
00
00. Defaults and Remedies. An event of default generally is:
default by the Company or any Subsidiary Guarantor for 30 days in payment of
interest on the Securities; default by the Company or any Subsidiary Guarantor
in payment of principal of, or premium, if any, on the Securities; default by
the Company or any Subsidiary Guarantor in the deposit of any optional
redemption payment when due and payable; defaults resulting in acceleration
prior to maturity of certain other Indebtedness or resulting from payment
defaults under certain other Indebtedness; failure by the Company or any
Subsidiary Guarantor for 45 days after notice to comply with any of its other
agreements in the Indenture; certain final judgments against the Company or
Subsidiaries; a failure of any Guarantee of a Subsidiary Guarantor to be in full
force and effect or denial by any Subsidiary Guarantor of its obligations with
respect thereto; and certain events of bankruptcy or insolvency. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities may declare all the Securities to be due and
payable immediately, except that in the case of an Event of Default arising from
certain events of bankruptcy, insolvency or reorganization relating to the
Company, all outstanding Securities shall become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Company must furnish an annual compliance certificate to the
Trustee.
16. Trustee Dealings with Company and Subsidiary Guarantors.
The Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company, the Subsidiary Guarantors or their respective Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee under the Securities 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 a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Security.
18. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent signs the certificate of authentication on
the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
20. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed
A-7
80
on the Securities as a convenience to Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Chesapeake Energy
Corporation, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer.
A-8
81
[Until this Temporary Regulation S Global Security is exchanged for a
Permanent Regulation S Global Security, the Holder hereof shall not be entitled
to receive payments of interest hereon; until so exchanged in full, this
Temporary Regulation S Global Security shall in all other respects be entitled
to the same benefits as other Securities under the Indenture.
This Temporary Regulation S Global Security is exchangeable in
whole or in part for one or more Permanent Regulation S Global Securities or
Restricted Global Securities only (i) on or after the expiration of the
Restricted Period and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article II of the Indenture.
Upon exchange of this Temporary Regulation S Global Security for one or more
Permanent Regulation S Global Securities or Restricted Global Securities, the
Trustee shall cancel this Temporary Regulation S Global Security.
This Temporary Regulation S Global Security shall not become
valid or obligatory until the certificate of authentication hereon shall have
been duly manually signed by the Trustee in accordance with the Indenture.
This Temporary Regulation S Global Security shall be governed by and construed
in accordance with tho laws of the State of New York.
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITIES
The following exchanges of a part of this Temporary Regulation
S Global Security for other Global Securities have been made:
Principal Amount of this
Amount of Decrease Amount of Increase in Global Security Signature of Authorized
in Principal Amount Principal Amount of Following Such Officer of Trustee or
Date of Exchange of this Global Security this Global Security Decrease (or Increase) Securities Custodian] (6)
---------------- ----------------------- -------------------- ---------------------- -------------------------
----------------------
(6) Insert on the form of reverse of a Temporary Regulation S Global Security.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________ as agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Your Signature:
________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Date: __________________________________
Signature Guarantee: ____________________________________________
X-00
00
XXXXXXX X-0
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and severally,
have unconditionally guaranteed the due and punctual payment of the principal
of, premium, if any, and interest on the Securities, and all other amounts due
and payable under the Indenture and the Securities by the Company, whether at
maturity, acceleration, redemption, repurchase or otherwise, including, without
limitation, the due and punctual payment of interest on the overdue principal
of, premium, if any, and interest on the Securities, to the extent lawful. The
obligations of the Subsidiary Guarantors pursuant to the Guarantee are subject
to the terms and limitations set forth in Article Ten of the Indenture, and
reference is made thereto for the precise terms of the Guarantee.
CHESAPEAKE OPERATING, INC.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHESAPEAKE GAS DEVELOPMENT
CORPORATION
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHESAPEAKE EXPLORATION LIMITED
PARTNERSHIP
By: Chesapeake Operating, Inc.,
General Partner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
A-1-1
84
EXHIBIT B
TRANSFEREE LETTER OF REPRESENTATION
Xxxxxxxxx Lufkin & Xxxxxxxx
Securities Corporation
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers, Inc.
Initial Purchasers in connection with the Offering Memorandum referred to below
Chesapeake Energy Corporation
0000 Xxxxx Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Ladies and Gentlemen:
In connection with our proposed purchase of $_________ aggregate
principal amount of 8 1/2% Senior Notes due 2012 (the "Notes") of Chesapeake
Energy Corporation (the "Company"), we confirm that:
(i) we are an "institutional accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the "Securities Act") (an
"Institutional Accredited Investor"), or any entity in which all of
the equity owners are Institutional Accredited Investors;
(ii) any purchase of Notes by us will be for our
own account or for the account of one or more other Institutional
Accredited Investors as to which we exercise sole investment
discretion;
(iii) in the event that we purchase any Notes, we
will acquire such Notes having a minimum purchase price of at least
$100,000 for our own account and for each separate account for which
we exercise sole investment discretion;
(iv) we have such knowledge and experience in
financial and business matters that we are capable of evaluating the
merits and risks of purchasing Notes and we
B-1
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and any accounts for which we are acting are able to bear the economic
risks of our or their investment;
(v) we are not acquiring the Notes with a view to
any distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; provided that the
disposition of our property and the property of any accounts for which
we are acting as shall remain at all times within our control; and
(vi) we have received a copy of the Offering
Memorandum and acknowledge that we have had access to such financial
and other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to
purchase Notes.
We understand that the Notes are being offered in a transaction not
involving any public offering in the United States within the meaning of the
Securities Act and that the Notes have not been registered under the Securities
Act, and we agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that if we should sell or otherwise transfer any Notes prior
to the date which is three years (or such shorter period set forth in Rule
144(k) under the Securities Act, as such provision may be amended) after the
original issuance of the Notes, we will do so only (a) to the Company or any of
its subsidiaries, (b) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (c) inside the United States to an
Institutional accredited Investor that, prior to such transfer, furnishes (or
has furnished on its behalf by a U.S. broker-dealer) to the Trustee, a signed
letter contained certain representations and agreements relating to the
restrictions on transfer of the Notes (the form of which letter can be obtained
from the applicable Trustee), (d) outside the United States in accordance with
Regulation S under the Securities Act, (e) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(f) pursuant to an effective registration statement under the Securities Act.
We understand that the registrar will not be required to accept for
registration of transfer any Notes, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on transfer have
been complied with. We understand that, on any proposed resale of any Notes,
we will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by
us will bear a legend reflecting the substance of this paragraph. We further
agree to provide to any person acquiring any of the Notes from us a notice
advising such person that resales of the Notes are restricted as stated herein.
We acknowledge that you, the Company and others will rely upon our
confirmation, acknowledgments and agreements set forth herein, and agree to
notify you promptly in writing if any of our representations or warranties
herein cease to be accurate and complete.
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THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
----------------------------------------
(Name of Purchaser)
By:
-------------------------------------
Name:
Title:
Date:
-----------------------------------
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
----------------------------
Address:
-------------------------
Taxpayer ID Number:
--------------
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EXHIBIT C
[FORM OF CERTIFICATION TO BE GIVEN BY
HOLDERS OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY TO
EUROCLEAR OR CEDEL]
OWNER SECURITIES CERTIFICATION
CHESAPEAKE ENERGY CORPORATION
8 1/2% Senior Notes due 2012
CUSIP No. ________
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This is to certify that, as of the date hereof, $___________ of the
above-captioned Securities (the "Securities") are beneficially owned by
non-U.S. person(s). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act of 1933, as
amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement is not correct on such date, and in the
absence of any such notification it may be assumed that this certification
applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
Dated: __________, 199__
By:
-------------------------------------
As, or as agent for, the beneficial
owner(s) of the Securities to
which this certificate
relates.
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EXHIBIT D
[FORM OF CERTIFICATION TO BE GIVEN BY THE
EUROCLEAR OPERATOR OR CEDEL BANK, SOCIETE
ANONYME]
DEPOSITORY SECURITIES CERTIFICATION
CHESAPEAKE ENERGY CORPORATION
8 1/2% Senior Notes due 2012
CUSIP No. ________
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This is to certify that, with respect to U.S.$________ principal
amount of the above-captioned Securities (the "Securities"), except as set
forth below, we have received in writing, by tested telex or by electronic
transmission, from member organizations appearing in our records as persons
being entitled to a portion of the principal amount of the Securities (our
"Member Organizations"), certifications with respect to such portion,
substantially to the effect set forth in the Indenture. (1)
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Regulation S Global Security (as defined
in the Indenture) excepted in such certifications and (ii) that as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably
----------------------------
(1) Unless Xxxxxx Guaranty Trust Company of New York, London Branch is
otherwise informed by the Agent, the long form certificate set out in the
Operating Procedures will be deemed to meet the requirements of this sentence.
D-1
89
authorize you to produce this certification to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Initial Purchasers.
Dated: __________, 199__
Yours faithfully,
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as operator of the
Euroclear System)
or
[CEDEL BANK, SOCIETE ANONYME]
By:
-------------------------------------
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EXHIBIT E
[FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY]
TRANSFEREE SECURITIES CERTIFICATION
CHESAPEAKE ENERGY CORPORATION
8 1/2% Senior Notes due 2012
CUSIP No. ________
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary
Regulation S Global Security, the undersigned certifies that it is not a U.S.
Person as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you in which we intend to acquire a beneficial interest in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchaser.
Dated: __________, 199__
By:
-------------------------------------
As, or as agent for, the beneficial
acquiror of the Securities to
which this certificate
relates.
X-0
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XXXXXXX X
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY TO
TEMPORARY REGULATION S GLOBAL SECURITY]
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S.$_____________ aggregate principal amount
of Securities which are held in Restricted Global Security (CUSIP No.
_________) with the Depository in the name of (insert name of transferor) (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person who will take delivery thereof in the
form of an equal aggregate principal amount of Securities evidenced by the
Temporary Regulation S Global Security (CUSIP No. ________) to be held with the
Depository in the name of [Euroclear] [Cedel Bank, Societe Anonyme].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby certify that:
(1) the offer of the Securities was not made to a
person in the United States;
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[(2) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States;] (1)
[(2) the transaction was executed in, on or
through the facilities of a designated offshore securities
market and neither the Transferor nor any person acting on our
behalf knows that the transaction was pre-arranged with a
buyer in the United States;] (1)
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act; and
(5) upon completion of the transaction, the
beneficial interest being transferred as described above is to
be held with the Depository in the name of [Euroclear] [Cedel
Bank, Societe Anonyme].
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
---------------------------
CC: Chesapeake Energy Corporation
----------------------------
(1) Insert one of these two provisions, which come from the definition
offshore transaction in Regulation S.
F-2
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EXHIBIT G
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), by and among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $____________ aggregate principal amount
of Securities which are held in the form of the Restricted Global Security
(CUSIP No. ________) with the Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Securities to a Person who will take delivery
thereof in the form of an equal aggregate principal amount of Securities
evidenced by the Permanent Regulation S Global Security (CUSIP No. _______).
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and,
(1) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), the Transferor does hereby certify that:
(A) the offer of the Securities was not made to a
person in the United States;
G-1
94
[(B) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the transferee
was outside the United States;] (1)
[(B) the transaction was executed in, on or
through the facilities of a designated offshore securities market and
neither the Transferor nor any person acting on our behalf knows that
the transaction was pre-arranged with a buyer in the United States;1
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act;
and
(2) with respect to transfers made in reliance on
Rule 144 under the Securities Act, the Transferor does hereby certify
that the Securities are being transferred in a transaction permitted
by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------------
CC: Chesapeake Energy Corporation
--------------------
(1) Insert one of these two provisions, which come from the definition of
offshore transactions in Regulation S.
G-2
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EXHIBIT H
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF TEMPORARY REGULATION S GLOBAL
SECURITY OR PERMANENT REGULATION S
GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $____________ principal amount of
Securities which are evidenced by an aggregate [Temporary Regulation S Global
Security (CUSIP No. _______)] [Permanent Regulation S Global Security (CUSIP
No. _______)] and held with the Depository through [Euroclear] [Cedel] (Common
Code _______) in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Securities to a person that will take delivery thereof in the form of an equal
principal amount of Securities evidenced by a Restricted Global Security of the
same series and of like tenor as the Securities (CUSIP No. ______).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act and, accordingly, the
Transferor does hereby further certify that the Securities are being
transferred to a person that the Transferor reasonably believes is purchasing
the Securities 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 each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Initial Purchasers.
H-1
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[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
--------------------------------
CC: Chesapeake Energy Corporation
H-2
97
EXHIBIT I-1
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF NON-GLOBAL RESTRICTED
SECURITY TO RESTRICTED GLOBAL SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $____________ principal amount of Restricted
Securities held in definitive form (CUSIP No. ________) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A or Rule 144 under
the United States Securities Act of 1933, as amended (the "Securities Act") and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule
144A:
(A) the Securities are being transferred to a
person that the Transferor reasonably believes is purchasing the
Securities for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion;
(B) such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A; and
I-1-1
98
(C) the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States;
or
(2) if the transfer has been effected pursuant to Rule
144:
(D) more than two years (or such shorter period
as set forth in Rule 144(d) or any amendment thereto) has elapsed
since the date of the closing of the initial placement of the
Securities pursuant to the Purchase Agreement; and
(E) the Securities have been transferred in a
transaction permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
Dated:
----------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
CC: Chesapeake Energy Corporation
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99
EXHIBIT I-2
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF NON-GLOBAL RESTRICTED
SECURITY TO PERMANENT REGULATION S GLOBAL
SECURITY OR TEMPORARY REGULATION S GLOBAL SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $____________ principal amount of Restricted
Securities held in definitive form (CUSIP No. _______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule
903 or Rule 904:
(A) the offer of the Securities was not made to a
person in the United States;
(B) either;
(i) at the time the buy order was
originated, the transferee was outside the United States or
the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States, or
I-2-1
100
(ii) the transaction was executed in, on
or through the facilities of a designated offshore securities
market and neither the Transferor nor any person acting on its
behalf knows that the transaction was pre-arranged with a
buyer in the United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable;
(D) the transaction is not part of a plan or
scheme to evade the registration requirements of the Act; and
(E) if such transfer is to occur during the
Restricted Period, upon completion of the transaction, the beneficial
interest being transferred as described above was held with the
Depository through [Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule
144:
(A) more than two years (or such shorter period
as set forth in Rule 144(d) or any amendment thereto) has elapsed
since the date of the closing of the initial placement of the
Securities pursuant to the Purchase Agreement; and
(B) the Securities have been transferred in a
transaction permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
Dated:
----------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
CC: Chesapeake Energy Corporation
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101
EXHIBIT J-1
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF NON-GLOBAL PERMANENT
REGULATION S SECURITY TO RESTRICTED GLOBAL
SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $_____________ principal amount of Restricted
Securities held in definitive form (CUSIP No. _______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended, and accordingly the Transferor does
hereby further certify that the Securities are being transferred to a person
that the Transferor reasonably believes is purchasing the Securities 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 each case
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably
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102
authorize you to produce this certificate to any interested party in such
proceeding. This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Initial Purchasers.
Dated:
----------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
CC: Chesapeake Energy Corporation
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EXHIBIT J-2
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF NON-GLOBAL PERMANENT
REGULATION S SECURITY TO
PERMANENT REGULATION S GLOBAL
SECURITY
United States Trust Company of New York,
as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Chesapeake Energy Corporation
8 1/2% Senior Notes due 2012 (the "Securities")
Reference is hereby made to the Indenture, dated as of March 15, 1997
(the "Indenture"), among Chesapeake Energy Corporation, as Issuer, the
Subsidiary Guarantors and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $_____________ principal amount of Restricted
Securities held in definitive form (CUSIP No. _______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule
903 or Rule 904:
(A) the offer of the Securities was not made to a
person in the United States;
(B) either;
(i) at the time the buy order was
originated, the transferee was outside the United States or
the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States, or
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104
(ii) the transaction was executed in, on
or through the facilities of a designated offshore securities
market and neither the Transferor nor any person acting on its
behalf knows that the transaction was pre-arranged with a
buyer in the United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable;
(D) the transaction is not part of a plan or
scheme to evade the registration requirements of the Act; and
(E) if such transfer is to occur during the
Restricted Period, upon completion of the transaction, the beneficial
interest being transferred as described above was held with the
Depository through [Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule
144;
(A) more than two years (or such shorter period
as set forth in Rule 144(d) or any amendment thereto) has elapsed
since the date of the closing of the initial placement of the
Securities pursuant to the Purchase Agreement; and
(B) the Securities have been transferred in a
transaction permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
Dated:
----------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
CC: Chesapeake Energy Corporation
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