EXHIBIT 4.2
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NEWFIELD EXPLORATION COMPANY,
AS ISSUER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 13, 2002
TO SUBORDINATED INDENTURE DATED AS OF DECEMBER 10, 2001
PROVIDING FOR ISSUANCE OF
8 3/8% SENIOR SUBORDINATED NOTES DUE 2012
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TABLE OF CONTENTS
Page
SECTION 1. Creation of 8 3/8% Notes.................................................2
SECTION 2. Definitions..............................................................3
SECTION 3. Amendments to Article Five of the Original Indenture....................31
SECTION 4. Amendments to Articles Eight and Nine of the Original Indenture.........33
SECTION 5. Amendments to Article Ten of the Original Indenture.....................37
SECTION 6. Amendments to Article Eleven of the Original Indenture..................53
SECTION 7. Amendments to Article Thirteen the Original Indenture...................55
SECTION 8. Amendments to Article Fourteen of the Original Indenture................56
SECTION 9. Subsidiary Guaranties...................................................61
SECTION 10. Governing Law...........................................................70
SECTION 11. Counterparts............................................................70
SECTION 12. Supplemental Indenture Controls.........................................70
EXHIBIT A. Form of 8 3/8% Note....................................................A-1
EXHIBIT B. Form of Supplemental Indenture.........................................B-1
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of August 13, 2002 (this
"First Supplemental Indenture"), supplements and amends the Subordinated
Indenture dated as of December 10, 2001 (the "Original Indenture") between
NEWFIELD EXPLORATION COMPANY, a Delaware corporation, as issuer (the "Company"),
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (f/k/a
First Union National Bank), as trustee (the "Trustee").
RECITATIONS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore executed and
delivered the Original Indenture to provide for the issuance of its subordinated
debt securities to be issued in one or more series;
WHEREAS, Section 9.01 of the Original Indenture provides, among other
things, that the Company and the Trustee may without the consent of Holders
enter into Indentures supplemental to the Original Indenture to, among other
things, (a) add to, change or eliminate any of the provisions of the Original
Indenture in respect of one or more series of Securities; provided, however,
that any such addition, change or elimination shall (i) neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such previously issued Security with respect to such
provision or (ii) shall become effective only when there is no such Security
Outstanding and (b) establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
WHEREAS, the Company desires to provide for the issuance of a new
series of Securities to be designated as the "8 3/8% Senior Subordinated Notes
due 2012" (the "8 3/8% Notes"), and to set forth the terms that will be
applicable thereto;
WHEREAS, all action on the part of the Company necessary to authorize
the issuance of the 8 3/8% Notes under the Original Indenture and this First
Supplemental Indenture (the Original Indenture, as amended and supplemented by
this First Supplemental Indenture, being hereinafter called the "Indenture") has
been duly taken; and
WHEREAS, all acts and things necessary to make the 8 3/8% Notes, when
executed by the Company and authenticated and delivered by the Trustee as
provided in the Original Indenture, the legal, valid and binding obligations of
the Company, and to constitute these presents a valid and binding supplemental
indenture according to its terms binding on the Company, have been done and
performed, and the execution of this First Supplemental Indenture and the
creation and issuance under the Indenture of the 8 3/8% Notes have in all
respects been duly authorized, and the Company in the exercise of the legal
right and power vested in it, executes this First Supplemental Indenture and
proposes to create, execute, issue and deliver the 8 3/8% Notes.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the designation, form, terms and provisions
of, and to authorize the authentication and delivery of the 8 3/8% Notes, and in
consideration of the acceptance of the 8 3/8% Notes by the Holders thereof and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
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SECTION 1. Creation of 8 3/8% Notes.
Pursuant to Sections 201 and 301 of the Original Indenture, there is
hereby created a new series of Securities designated as the "8 3/8% Senior
Subordinated Notes due 2012" (which are hereinafter referred to as the "8 3/8%
Notes" for purposes of this First Supplemental Indenture). The Trustee shall
authenticate 8 3/8% Notes for original issue on the Issue Date in the aggregate
principal amount of $250,000,000 (the "Original 8 3/8% Notes"). The Original
8 3/8% Notes shall be in the form specified in Exhibit A to this First
Supplemental Indenture, shall have the terms set forth therein and shall be
entitled to the benefits of the other provisions of the Original Indenture as
modified by this First Supplemental Indenture and specified herein.
With respect to any 8 3/8% Notes issued after the Issue Date (except
for 8 3/8% Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other 8 3/8% Notes pursuant to Section 304,
305, 306, 906 or 1107) (the "Additional 8 3/8% Notes"), there shall be
established in or pursuant to a resolution of the Board of Directors of the
Company:
(a) that such Additional 8 3/8% Notes shall be issued as part of
the same or a different series as the Original 8 3/8% Notes;
(b) the aggregate principal amount of such Additional 8 3/8%
Notes which may be authenticated and delivered under the Indenture, which may be
in an unlimited aggregate principal amount or which may be in a limited
principal amount (except for Additional 8 3/8% Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
8 3/8% Notes pursuant to Section 304, 305, 306, 906 or 1107 and except for
Additional 8 3/8% Notes which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the issue price and issuance date of such Additional 8 3/8%
Notes, including the date from which interest on such Additional 8 3/8% Notes
shall accrue;
(d) if applicable, that such Additional 8 3/8% Notes shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form
of any legend or legends that shall be borne by any such Global Security in
addition to or in lieu of that set forth in Exhibit A and any circumstances in
addition to or in lieu of those set forth in the Indenture in which any such
Global Security may be exchanged in whole or in part for 8 3/8% Notes
registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof; and
(e) if applicable, that such Additional 8 3/8% Notes shall not
be registered under the Securities Act, but shall be issued pursuant to an
exemption from registration under the Securities Act, shall bear additional
appropriate legends and shall have the benefit of registration rights.
Except as set forth above, such Additional 8 3/8% Notes shall have the terms set
forth in Exhibit A to this First Supplemental Indenture, such Additional 8 3/8%
Notes shall be entitled to the benefits of the other provisions of the Original
Indenture as modified by this First Supplemental
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Indenture, and the Original 8 3/8% Notes and such Additional 8 3/8% Notes shall
be treated as a single class under the Indenture for purposes of waivers,
amendments, redemptions and offers to purchase.
SECTION 2. Definitions.
(a) Capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned thereto in the Original Indenture.
(b) Section 101 of the Original Indenture is amended and
supplemented by inserting or restating, as the case may be, in their appropriate
alphabetical position, the following definitions:
"Additional Assets" means:
(1) any property, plant or equipment used in a Related Business;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clause (2)
or (3) above is primarily engaged in a Related Business.
"Additional 8 3/8% Notes" has the meaning attributed thereto in Section
1 of the First Supplemental Indenture.
"Adjusted Consolidated Net Tangible Assets" or "ACNTA" means (without
duplication), as of the date of determination:
(a) the sum of:
(1) discounted future net revenue from proved crude oil and
natural 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 the Company's reserve engineers
in a reserve report prepared as of the end of the fiscal year ending at
least 45 days prior to the date of determination, as increased by, as
of the date of determination, the discounted future net revenue
calculated in accordance with SEC guidelines (utilizing the prices
utilized in such year end reserve report) of:
(A) estimated proved crude oil and natural gas reserves
of the Company and its Restricted Subsidiaries attributable to
acquisitions consummated since the date of such reserve report,
and
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(B) estimated crude oil and natural gas reserves of the
Company and its Restricted Subsidiaries attributable to
extensions, discoveries and other additions and upward
determinations of estimates of proved crude oil and natural gas
reserves (including previously estimated development costs
incurred during the period and the accretion of discount since
the prior period end) due to exploration, development or
exploitation, production or other activities which reserves were
not reflected in such reserve report which would, in accordance
with standard industry practice, result in such determinations,
and decreased by, as of the date of determination, the discounted
future net revenue calculated in accordance with SEC guidelines
(utilizing the prices utilized in such year-end reserve report)
attributable to:
(C) estimated proved crude oil and natural gas reserves
of the Company and its Restricted Subsidiaries reflected in such
reserve report produced or disposed of since the date of such
reserve report, and
(D) reductions in the estimated crude oil and natural gas
reserves of the Company and its Restricted Subsidiaries
reflected in such reserve report since the date of such reserve
report attributable to downward determinations of estimates of
proved crude oil and natural gas reserves due to exploration,
development or exploitation, production or other activities
conducted or otherwise occurring since the date of such reserve
report which would, in accordance with standard industry
practice, result in such determinations;
(2) the capitalized costs that are attributable to crude oil and
natural gas properties of the Company and its Restricted Subsidiaries
to which no proved crude oil and natural gas reserves are attributed,
based on the Company's books and records as of a date no earlier than
the most recent fiscal quarter for which financial statements of the
Company have been made publicly available prior to the date of
determination;
(3) the Net Working Capital as of the end of the most recent
fiscal quarter for which financial statements of the Company have been
made publicly available prior to the date of determination; and
(4) the greater of (i) the net book value as of a date no
earlier than the most recent fiscal quarter for which financial
statements of the Company have been made publicly available prior to
the date of determination and (ii) the appraised value, as estimated by
independent appraisers, of other tangible assets of the Company and its
Restricted Subsidiaries as of a date no earlier than the most recent
fiscal year for which financial statements of the Company have been
made publicly available prior to the date of determination (provided
that the Company shall not be required to obtain such an appraisal of
such assets if no such appraisal has been performed); minus
(b) to the extent not otherwise taken into account in the immediately
preceding clause (a), the sum of:
(1) minority interests;
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(2) any natural gas balancing liabilities of the Company and
its Restricted Subsidiaries reflected in the Company's latest audited
financial statements;
(3) 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;
(4) 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 that 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; and
(4) the discounted future net revenue calculated in accordance
with SEC guidelines, attributable to reserves subject to
Dollar-Denominated Production Payments that, based on the estimates of
production included in determining the discounted future net revenue
specified in the immediately preceding clause (a)(1) (utilizing the
same prices utilized in the Company's year-end reserve report), would
be necessary to satisfy fully the obligations of the Company and its
Restricted Subsidiaries with respect to Dollar-Denominated Production
Payments on the schedules specified with respect thereto.
If the Company changes its method of accounting from the full cost method to the
successful efforts method or a similar method of accounting, "ACNTA" will
continue to be calculated as if the Company were still using the full cost
method of accounting. References in this definition to "crude oil and natural
gas" are intended to include condensate, natural gas liquids and other liquid
hydrocarbons.
"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 Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 1011, 1014 and 1015 only, "Affiliate" shall also mean any
beneficial owner of Capital Stock representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such Capital Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence of this definition.
"Applicable Premium" means, with respect to an 8 3/8% Note at any time,
the greater of (1) 1.0% of the principal amount of such Security at such time
and (2) the excess of (A) the present value at such time of the principal amount
of such Security plus any required interest payments due on such Security from
the Redemption Date to August 15, 2007, computed using a
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discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
principal amount of such Security.
"Asset Disposition" means any sale, lease, issuance, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a
Restricted Subsidiary);
(2) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary.
Notwithstanding the foregoing, the following shall be deemed not to be
Asset Dispositions:
(A) a disposition by the Company or a Restricted
Subsidiary to the Company or a Restricted Subsidiary;
(B) for purposes of Section 1014 only, (x) a
disposition that constitutes a Restricted Payment permitted by
Section 1011 or a Permitted Investment and (y) a disposition
of all or substantially all the assets of the Company in
accordance with Section 801;
(C) the trade or exchange by the Company or any
Restricted Subsidiary of any property used in the Oil and Gas
Business of the Company or a Restricted Subsidiary for any
similar property of another Person, including any cash or cash
equivalents necessary in order to achieve an exchange of
equivalent value; provided, however, that the value of the
property received by the Company or any Restricted Subsidiary
in such trade or exchange (including any cash or cash
equivalents) is at least equal to the fair market value (as
determined in good faith by the Board of Directors, an Officer
or an officer of such Restricted Subsidiary with
responsibility for such transaction, which determination shall
be conclusive evidence of compliance with this provision) of
the property (including any cash or cash equivalents) so
traded or exchanged;
(D) the creation of a Lien;
(E) a disposition of oil and natural gas properties in
connection with tax credit transactions complying with Section
29 or any successor or analogous provisions of the Code;
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(F) a disposition of the Capital Stock of or any
Investment in any Unrestricted Subsidiary;
(G) surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other
claims of any kind;
(H) any disposition of defaulted receivables that arose
in the ordinary course of business for collection;
(I) the contribution of overriding royalty interests in
oil and natural gas properties to the Treasure Island Royalty
Trust and the disposition of the Capital Stock of the Treasure
Island Royalty Trust, in each case in connection with the
Company's acquisition of EEX by merger; and
(J) a disposition of assets with a fair market value of
less than $5.0 million.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the 8 3/8% Notes, compounded semiannually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); provided, however, that if such
Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capital Lease Obligation".
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the
date of determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with respect to
such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bank Indebtedness" means all Obligations pursuant to any Credit
Facilities.
"Board of Directors" means the board of directors of the Company or any
committee thereof duly authorized to act on behalf of such board.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
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"Capital Stock" of any Person means any and all shares, units of
beneficial interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the following
events:
(1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company;
(2) during any period of two consecutive years, individuals
who, at the beginning of such period, constituted the Board of
Directors (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders of
the Company was approved by a vote of the majority of the directors of
the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office;
(3) the adoption of a plan relating to the liquidation or
dissolution of the Company; or
(4) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company (determined on a consolidated basis) to another Person, other
than a transaction following which (A) in the case of a merger or
consolidation transaction, holders of securities that represented 100%
of the Voting Stock of the Company immediately prior to such
transaction (or other securities into which such securities are
converted as part of such merger or consolidation transaction) own
directly or indirectly at least a majority of the voting power of the
Voting Stock of the surviving Person in such merger or consolidation
transaction immediately after such transaction and (B) in the case of a
sale of assets transaction, each transferee becomes an obligor in
respect of the 8 3/8% Notes and a Subsidiary of the transferor of such
assets.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor. For the purposes of
any part of any provision contained herein which is required by the TIA, and
only for the purposes of such part, to the extent required by the context or by
the TIA, "Company" shall also include each other obligor on the indenture
securities.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (x) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters
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for which financial information of the Company has been made publicly available
prior to the date of such determination to (y) Consolidated Interest Expense for
such four fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred
any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or
both, then EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness and the use of proceeds thereof as if such Indebtedness
had been Incurred on the first day of such period and such proceeds had
been applied as of such date;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged on the date of the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, then EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge
had occurred on the first day of such period and as if the Company or
such Restricted Subsidiary had not earned the interest income actually
earned (if any) during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge
such Indebtedness;
(3) if, since the beginning of such period, the Company or any
Restricted Subsidiary shall have made any Asset Disposition, then
EBITDA for such period shall be reduced by an amount equal to EBITDA
(if positive) directly attributable to the assets which were the
subject of such Asset Disposition for such period, or increased by an
amount equal to EBITDA (if negative), directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period
(or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to
the Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable
for such Indebtedness after such sale);
(4) if, since the beginning of such period, the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of material assets, including
any acquisition of assets occurring in connection with a transaction
requiring a calculation to be made under the Indenture, which
constitutes all or substantially all of an operating unit of a
business, then EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of such period; and
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(5) if, since the beginning of such period, any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant
to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, then EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition
had occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer. If
any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness, but if the remaining term of such Interest Rate Agreement is less
than 12 months, then such Interest Rate Agreement shall only be taken into
account for that portion of the period equal to the remaining term thereof).
The Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility, the outstanding principal
balance of which is required to be computed on a pro forma basis in accordance
with the foregoing, shall be computed based upon the average daily balance of
such Indebtedness during the applicable period; provided, however, that such
average daily balance shall take into account the amount of any repayment of
Indebtedness under such revolving credit facility during the applicable period
to the extent such repayment permanently reduced the commitments or amounts
available to be borrowed under such facility.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries, without
duplication:
(1) interest expense attributable to capital leases and the
interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(6) net payments pursuant to Interest Rate Agreements;
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(7) Preferred Stock dividends in respect of all Preferred
Stock held by Persons other than the Company or a Wholly Owned
Subsidiary (other than dividends payable solely in Capital Stock (other
than Disqualified Stock) of the Company);
(8) interest incurred in connection with Investments in
discontinued operations;
(9) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Company or any Restricted Subsidiary; and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or
trust;
minus, to the extent included above, write-off of deferred financing costs and
interest attributable to Dollar-Denominated Production Payments.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that: (A) subject to
the exclusion contained in clause (4) below, the Company's equity in
the net income of any such Person for such period shall be included in
such Consolidated Net Income in an amount equal to the aggregate amount
of cash actually distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend, interest payment or
other distribution (subject, in the case of a dividend, interest
payment or other distribution paid to a Restricted Subsidiary, to the
limitations contained in clause (3) below); and (B) the Company's
equity in a net loss of any such Person for such period shall not be
included in determining such Consolidated Net Income, except to the
extent of the aggregate cash actually contributed to such Person by the
Company or a Restricted Subsidiary during such period;
(2) solely for purposes of determining the aggregate amount
available for Restricted Payments under Section 1011(a)(3), any net
income (or loss) of any Person acquired by the Company or a Subsidiary
in a pooling of interests transaction for any period prior to the date
of such acquisition;
(3) any net income of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in net income of any such
Restricted Subsidiary for such
11
period shall be included in such Consolidated Net Income in an
amount equal to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a
dividend, interest payment or other distribution (subject, in
the case of a dividend, interest payment or other distribution
paid to another Restricted Subsidiary, to the limitation
contained in this clause); and
(B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain or loss, together with any related provision for
taxes on such gain or loss and all related fees and expenses, realized
in connection with (A) the sale or other disposition of any assets of
the Company, its consolidated Subsidiaries or any other Person
(including pursuant to any Sale/Leaseback Transaction) which is not
sold or otherwise disposed of in the ordinary course of business and
(B) the disposition of any securities of any Person or the
extinguishment of any Indebtedness of the Company or any of its
Subsidiaries;
(5) extraordinary or nonrecurring gains or losses, together
with any related provision for taxes on such gains or losses and all
related fees and expenses;
(6) the cumulative effect of a change in accounting
principles;
(7) any impairment losses on oil and natural gas properties;
(8) any unrealized noncash gains or losses or charges in
respect of Hedging Obligations (including those resulting from the
application of SFAS 133); and
(9) any non-cash compensation charge arising from any grant of
stock, stock options or other equity-based awards.
Notwithstanding the foregoing, for the purposes of Section 1011 only,
there shall be excluded from Consolidated Net Income any repurchases, repayments
or redemptions of Investments, proceeds realized on the sale of Investments or
return of capital to the Company or a Restricted Subsidiary to the extent such
repurchases, repayments, redemptions, proceeds or returns increase the amount of
Restricted Payments permitted under such section pursuant to clause (a)(3)(E)
thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company ending at least 45 days prior to the taking of any
action for the purpose of which the determination is being made, as the sum of:
(1) the par or stated value of all outstanding Capital Stock
of the Company; plus
12
(2) paid-in capital or capital surplus relating to such
Capital Stock; plus
(3) any retained earnings or earned surplus,
less (A) any accumulated deficit and (B) any amounts attri0butable to
Disqualified Stock.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities (including the Revolving
Credit Facility) or commercial paper facilities with banks or other lenders
providing revolving credit loans, term loans, Production Payments, receivables
financing (including through the sale of receivables) or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Senior Indebtedness" with respect to a Person means:
(1) the Bank Indebtedness; and
(2) any other Senior Indebtedness of such Person which, at the
date of determination, has an aggregate principal amount outstanding
of, or under which, at the date of determination, the holders thereof
are committed to lend up to, at least $25.0 million and is specifically
designated by such Person in the instrument evidencing or governing
such Senior Indebtedness as "Designated Senior Indebtedness" for
purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event:
(1) matures or is mandatorily redeemable (other than
redeemable only for Capital Stock of such Person which is not itself
Disqualified Stock) pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the first anniversary of the Stated Maturity of the
8 3/8% Notes; provided, however, that: (A) any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or
13
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" shall not constitute Disqualified Stock if:
(1) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable, as measured by
the purchase or redemption price or the breadth of the definition of
the event or events triggering such purchase or redemption obligation,
to the holders of such Capital Stock than the terms applicable to the 8
3/8% Notes pursuant to Sections 1014 and 1016; and
(2) any such requirement only becomes operative after
compliance with such terms applicable to the 8 3/8% Notes, including
the purchase of any 8 3/8% Notes tendered pursuant thereto,
and (B) any Capital Stock that would constitute Disqualified Stock solely
because such Capital Stock is issued pursuant to any plan for the benefit of
employees of the Company or Subsidiaries of the Company or by any such plan to
such employees and may be required to be repurchased by the Company in order to
satisfy applicable statutory or regulatory obligations shall not constitute
Disqualified Stock.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
the following to the extent deducted in calculating such Consolidated Net
Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation, depletion, exploration and amortization
expense of the Company and its consolidated Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid operating
activity item that was paid in cash in a prior period); and
(4) all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for
cash expenditures in any future period);
14
in each case for such period, and less, to the extent included in calculating
such Consolidated Net Income and in excess of any costs or expenses attributable
thereto and deducted in calculating such Consolidated Net Income, the sum of:
(A) the amount of deferred revenues that are amortized
during such period and are attributable to reserves that are
subject to Volumetric Production Payments; and
(B) amounts recorded in accordance with GAAP as
repayments of principal and interest pursuant to
Dollar-Denominated Production Payments.
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation, depletion, exploration and
amortization and non-cash charges of, a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion, including by reason of minority interests) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income
and only if a corresponding amount would be permitted at the date of
determination to be dividended or distributed, directly or indirectly, to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter (or similar organizational
document) and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or
its stockholders.
"EEX" means EEX Corporation, a Texas corporation.
"8 3/8% Notes" means the Original 8 3/8% Notes and the Additional
8 3/8% Notes.
"Escrow Agent" means Wachovia Bank, National Association, in its
capacity as escrow agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated as of the Issue
Date among UBS Warburg LLC, as representative of the several underwriters of the
Original 8 3/8% Notes, the Trustee and the Escrow Agent.
"Existing Investments" means assets (including securities) held by the
Company or any of the Restricted Subsidiaries as consideration for an Investment
made on or before the Issue Date or acquired thereafter pursuant to any
agreement or obligation as in effect on the Issue Date.
"Existing Trust Preferred Securities" means the Company-obligated
6 1/2% Cumulative Quarterly Income Convertible Preferred Securities, Series A
issued by Newfield Financial Trust I, a statutory business trust, on August 13,
1999, in an aggregate liquidation amount of $148.2 million.
"Finance Person" means a Subsidiary of the Company that is organized as
a business trust or similar entity for the primary purposes of (1) holding
Subordinated Indebtedness of the Company or a Restricted Subsidiary with respect
to which payments of interest can, at the election of the issuer thereof, be
deferred for one or more payment periods, and (2) issuing
15
Qualifying Trust Preferred Securities, the proceeds of which are lent to the
Company or such Restricted Subsidiary.
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of the Issue Date, between the Company and the Trustee relating to the
8 3/8% Notes.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in:
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by
a significant segment of the accounting profession; and
(4) the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements
in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise); or
(2) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any Indebtedness.
"Guarantied Obligations" has the meaning assigned to such term in
Section 1501.
"Guaranty Agreement" means a supplemental indenture, substantially in
the form of Exhibit B to the First Supplemental Indenture, pursuant to which a
Subsidiary Guarantor guarantees the Company's obligations with respect to the
8 3/8% Notes on the terms provided for in this Indenture.
16
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Oil and Natural Gas Hedging Contract, Interest Rate
Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name an 8 3/8% Note
is registered in the Security Register for the 8 3/8% Notes.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term
"Incurrence" when used as a noun shall have a correlative meaning. Solely for
purposes of determining compliance with Section 1010, (1) amortization of debt
discount or the accretion of principal with respect to a non-interest bearing or
other discount security, (2) the payment of regularly scheduled interest in the
form of additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of additional Capital
Stock of the same class and with the same terms, (3) the obligation to pay a
premium in respect of Indebtedness arising in connection with the issuance of a
notice of redemption or making of a mandatory offer to purchase such
Indebtedness and (4) unrealized losses or charges in respect of Hedging
Obligations (including those resulting from the application of SFAS 133) shall
be deemed not to be Incurrences of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and accrued
expenses);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, bankers' acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on
the letter of credit);
(5) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock of such Person or,
17
with respect to any Preferred Stock of any Restricted Subsidiary of
such Person, the principal amount of such Preferred Stock to be
determined in accordance with this Indenture (but excluding, in each
case, any accrued dividends) (and the term "Incur Indebtedness" and
similar terms include issuances of such Disqualified Stock and
Preferred Stock);
(6) all obligations of the types referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, including by means of any Guarantee;
(7) all obligations of the types referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the liquidation value of such property or asset and the amount of the
obligation so secured;
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person; and
(9) any Guarantee by such Person of production or payment with
respect to a Production Payment,
if and to the extent, in the case of obligations of the types referred to in
clauses (1), (2) and (3) above, such obligations would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP.
Except as expressly provided in clause (9) above, Production Payments
and Reserve Sales shall not constitute "Indebtedness." For purposes of Section
1010, Indebtedness shall not include Qualifying Trust Preferred Securities and
debt securities related to Qualifying Trust Preferred Securities and held by a
Finance Person.
Notwithstanding the foregoing, in connection with the purchase by the
Company or any Restricted Subsidiary of any business, the term "Indebtedness"
will exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such
payment is not determinable and, to the extent such payment thereafter becomes
fixed and determined, the amount is paid within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time will be the accreted value thereof at such time.
18
"Independent Qualified Party" means an investment banking firm,
accounting firm or appraisal firm of national standing; provided, however, that
such firm is not an Affiliate of the Company.
"Interest Rate Agreement" means in respect of a Person any interest
rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including by way of Guarantee but excluding any
such extension of credit made in the ordinary course of business to any customer
or supplier) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition for value of Capital Stock,
Indebtedness or other similar instruments issued by, such Person. Except as
otherwise provided for herein, the amount of an Investment shall be its fair
value at the time the Investment is made and without giving effect to subsequent
changes in value.
For purposes of the definition of "Unrestricted Subsidiary," the
definition of "Restricted Payment" and Section 1011:
(1) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of
Directors.
"Issue Date" means August 13, 2002.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor to
its credit rating business.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such assets or received in any
other noncash form), in each case net of:
(1) all accounting, engineering, investment banking,
brokerage, legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all
00
Xxxxxxx, xxxxx, xxxxxxxxxx, foreign and local and other taxes required
to be accrued as a liability under GAAP, as a consequence of such Asset
Disposition, and any relocation expenses incurred or assumed in
connection with such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by
any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition; and
(4) the deduction of appropriate amounts provided by the
seller as a reserve for adjustment in respect of the sale price of the
assets that were the subject of such Asset Disposition or as a reserve,
in accordance with GAAP, against any liabilities associated with such
assets and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock or Indebtedness, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Present Value" means, with respect to any proved oil and natural
gas reserves, the discounted future net cash flows associated with such
reserves, determined in accordance with the rules and regulations (including
interpretations thereof) of the Commission in effect on August 8, 2002.
"Net Working Capital" means:
(1) all current assets of the Company and its Restricted
Subsidiaries, except current assets from commodity price risk
management activities arising in the ordinary course of business; minus
(2) all current liabilities of the Company and its Restricted
Subsidiaries, except current liabilities included in Indebtedness and
current liabilities from commodity price risk management activities
arising in the ordinary course of business, determined in accordance
with GAAP.
"Non-Recourse Purchase Money Indebtedness" means (1) Indebtedness
(other than Capital Lease Obligations) of the Company or any Restricted
Subsidiary incurred in connection with the acquisition by the Company or such
Restricted Subsidiary in the ordinary course of business of fixed assets used in
the Oil and Gas Business (including office buildings and other real property
used by the Company or such Restricted Subsidiary in conducting its operations)
and (2) any renewals and refinancings of such Indebtedness; provided, however,
that the holders
20
of such Indebtedness described in clauses (1) and (2) agree that they will look
solely to the fixed assets so acquired which secure such Indebtedness (subject
to customary exceptions such as indemnifications for environmental and title
matters and fraud) for payment on or in respect of such Indebtedness and no
default with respect to such Indebtedness would permit (after notice or passage
of time or both), according to the terms of any other Indebtedness of the
Company or a Restricted Subsidiary, any holder of such other Indebtedness to
declare a default under such other Indebtedness or cause the payment of such
other Indebtedness to be accelerated or payable prior to its Stated Maturity.
"Obligations" means, with respect to any Indebtedness, all obligations
for principal premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable under the documentation governing such
Indebtedness.
"Officer" means the President, any Vice President, the Treasurer or the
Secretary of the Company or its principal executive, financial or accounting
officer.
"Officers' Certificate" means a certificate signed by two Officers. One
of the Officers signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer of the
Company.
"Oil and Gas Business" means:
(1) the acquisition, exploration, exploitation, development,
operation and disposition of interests in oil, natural gas, other
hydrocarbon and mineral properties;
(2) the gathering, marketing, distribution, treating,
processing, storage, refining, selling and transporting of any
production from such interests or properties and the marketing of oil,
natural gas, other hydrocarbons and minerals obtained from unrelated
Persons;
(3) any business relating to or arising from exploration for
or exploitation, development, production, treatment, processing,
storage, refining, transportation, gathering or marketing of oil,
natural gas, other hydrocarbons and minerals and products produced in
association therewith; and
(4) any activity necessary, appropriate or incidental to the
activities described in the preceding clauses (1) through (3) of this
definition.
"Oil and Natural Gas Hedging Contract" means any oil and natural gas
hedging agreement and any other agreement or arrangement designed to protect the
Company or any Restricted Subsidiary against fluctuations in oil and natural gas
prices.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Original 8 3/8% Notes" has the meaning attributed thereto in Section 1
of the First Supplemental Indenture.
21
"Permitted Business Investments" means Investments and expenditures
made in the ordinary course of, and of a nature that is or shall have become
customary in, the Oil and Gas Business as means of actively exploiting,
exploring for, acquiring, developing, processing, gathering, marketing or
transporting oil, natural gas, other hydrocarbons and minerals through
agreements, transactions, interests or arrangements that permit one to share
risks or costs, comply with regulatory requirements regarding local ownership or
satisfy other objectives customarily achieved through the conduct of the Oil and
Gas Business jointly with third parties, including:
(1) ownership interests in oil, natural gas, other
hydrocarbons and mineral properties or gathering, transportation,
processing, storage or related systems; and
(2) entry into, and Investments and expenditures in the form
of or pursuant to, operating agreements, working interests, royalty
interests, mineral leases, processing agreements, farm-in agreements,
farm-out agreements, contracts for the sale, transportation or exchange
of oil, natural gas, other hydrocarbons and minerals, production
sharing agreements, development agreements, area of mutual interest
agreements, unitization agreements, pooling arrangements, joint bidding
agreements, service contracts, joint venture agreements, partnership
agreements (whether general or limited), limited liability company
agreements, subscription agreements, stock purchase agreements,
stockholder agreements and other similar agreements with third parties
(including Unrestricted Subsidiaries).
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company, a Restricted Subsidiary or a Person that will
as a result of such Investment become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted
Subsidiary is a Related Business;
(2) cash and Temporary Cash Investments;
(3) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(4) payroll, travel and similar extensions of credit to cover
matters that are expected at the time of such extensions of credit
ultimately to be treated as expenses for accounting purposes and that
are made in the ordinary course of business;
(5) extensions of credit to officers, directors and employees
made in the ordinary course of business consistent with past practices
of the Company or such Restricted Subsidiary;
22
(6) Capital Stock, obligations or securities received in
settlement of debts created in the ordinary course of business and
owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments;
(7) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an Asset Disposition
as permitted pursuant to Section 1014 or consideration received for a
disposition not constituting an Asset Disposition;
(8) any Person where such Investment was acquired by the
Company or any of its Restricted Subsidiaries (a) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other Investment or accounts receivable or (b) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with
respect to any secured Investment in default;
(9) any acquisitions of Capital Stock solely in exchange for
Capital Stock (other than Disqualified Stock) of the Company; provided,
however, that the fair market value of such Capital Stock, when taken
together with all other Capital Stock acquired pursuant to this clause
(9) and at the time owned by the Company or its Restricted
Subsidiaries, does not exceed $10.0 million;
(10) Hedging Obligations;
(11) obligations of one or more officers, directors or
employees of the Company or any of its Restricted Subsidiaries in
connection with such individual's acquisition of shares of Capital
Stock of the Company (and refinancings of the principal thereof and
accrued interest thereon) so long as no net cash or other assets of the
Company and its Restricted Subsidiaries are paid by the Company or any
of its Restricted Subsidiaries to such individuals in connection with
the acquisition of any such obligations;
(12) Existing Investments and any Investments made with the
proceeds of any dispositions thereof;
(13) Permitted Business Investments;
(14) Guarantees of performance or other obligations (other
than Indebtedness) arising in the ordinary course in the Oil and Gas
Business, including obligations under oil and natural gas exploration,
development, joint operating, and related agreements and licenses or
concessions related to the Oil and Gas Business;
(15) Investments in prepaid expenses, negotiable instruments
held for collection or deposit and lease, utility and workers
compensation, performance and similar deposits entered into as a result
of the operations of the business in the ordinary course of business;
and
23
(16) any Person, not otherwise permitted to be made pursuant
to clause (1) through (15), in an aggregate amount, which when taken
together with all other Investments made on or after the Issue Date
pursuant to this clause, does not exceed $50 million at any one time
outstanding, measured as of the date such Investments are made without
giving effect to any subsequent changes in value (which Investments
shall be deemed no longer outstanding only upon the return of capital
thereof).
"Permitted Liens" means the following types of Liens:
(1) Liens securing Senior Indebtedness;
(2) Liens in favor of the Company or a Restricted Subsidiary;
(3) Liens securing the 8 3/8% Notes;
(4) Liens existing as of the Issue Date; and
(5) Liens arising from the deposit of funds or securities in
trust for the purpose of decreasing or defeasing Indebtedness so long
as such deposit of funds or securities and such decreasing or defeasing
of Indebtedness are permitted under Section 1011.
In each case set forth above, notwithstanding any stated limitation on
the assets that may be subject to such Lien, a Permitted Lien on a specified
asset or group or type of assets may include Liens on all improvements,
additions and accessions thereto and all products and proceeds thereof
(including, without limitation, dividends, distributions and increases in
respect thereof).
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Principal" of an 8 3/8% Note means the principal of the 8 3/8% Note
plus the premium, if any, payable on the 8 3/8% Note which is due or overdue or
is to become due at the relevant time.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Production Payments and Reserve Sales" means the grant or transfer to
any Person of a Dollar-Denominated Production Payment, Volumetric Production
Payment, royalty, overriding royalty, net profits interest, master limited
partnership interest or other interest in oil and natural gas properties,
reserves or the right to receive all or a portion of the production or the
proceeds from the sale of production attributable to such properties.
"Public Equity Offering" means an underwritten primary public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
24
"Public Market" exists at any time with respect to the common stock of
the Company if it is then (1) registered with the Commission pursuant to Section
12(b) or 12(g) of the Exchange Act and (2) traded either on a national
securities exchange or on the Nasdaq Stock Market.
"Qualified Redemption Transaction" means redemption of any Capital
Stock or Subordinated Obligation (including any Subordinated Obligation
accounted for as a minority interest of the Company that is held by a Finance
Person) that by its terms is convertible into common stock of the Company if on
the date of notice of call for such redemption (1) a Public Market exists in the
shares of common stock of the Company and (2) the average closing price on the
Public Market for shares of common stock of the Company for the 20 trading days
immediately preceding the date of notice exceeds the product of (x) the
redemption price expressed as a percentage of the stated value or amount of the
item being redeemed and (y) 120% of the conversion price per share of common
stock of the Company issuable upon conversion of the Capital Stock or
Subordinated Obligation called for redemption.
"Qualifying Trust Preferred Securities" means preferred trust
securities or similar securities issued by a Finance Person after the Issue
Date.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund or to issue other Indebtedness in exchange or replacement
for, such Indebtedness. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced; and
(3) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus accrued interest thereon and fees
and expenses, including any premium and defeasance costs) under the
Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor which
Refinances Indebtedness of the Company and (B) Indebtedness of the Company or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
25
"Related Business" means the Oil and Gas Business and any other
business in which the Company or a Subsidiary was engaged on the Issue Date and
any business related, ancillary or complementary thereto.
"Representative" means, with respect to a Person, any trustee, agent or
representative (if any) for an issue of Senior Indebtedness of such Person.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment (without duplication) of any
dividends or any other distributions of any sort in respect of its
Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct
or indirect holders of its Capital Stock (other than (A) dividends or
distributions payable solely in its Capital Stock (other than
Disqualified Stock), (B) dividends or distributions payable solely to
the Company or a Restricted Subsidiary, and (C) dividends or other
distributions made by a Subsidiary to the holders of any class of its
Capital Stock on a pro rata basis);
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any
Person (other than a Restricted Subsidiary) or of any Capital Stock of
a Restricted Subsidiary held by any Affiliate of the Company (other
than the Company or a Restricted Subsidiary), including the exercise of
any option to exchange any Capital Stock (other than into Capital Stock
of the Company that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations of such Person (other than the purchase,
repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value);
or
(4) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company that is not
an Unrestricted Subsidiary.
"Revolving Credit Facility" means the Credit Agreement dated as of
January 23, 2001 among the Company, the lenders referred to therein, JPMorgan
Chase Bank, as Agent, together with the related documents thereto (including the
term loans and revolving loans thereunder, any guarantees and security
documents, whether made by the Company or any Restricted Subsidiary), as
amended, extended, renewed, restated, supplemented or otherwise modified (in
whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time.
26
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor to its credit rating business.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned by the Company or a Restricted Subsidiary on the Issue Date or thereafter
acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and thereafter the
Company or a Restricted Subsidiary leases it from such Person.
"Secured Indebtedness" means any Indebtedness of the Company secured by
a Lien.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the
Issue Date or thereafter Incurred; and
(2) all other Obligations of such Person (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person whether or not post-filing
interest is allowed in such proceeding) in respect of Indebtedness
described in clause (1) above,
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such Indebtedness or other Obligations are subordinate or pari passu in
right of payment to the 8 3/8% Notes or the Subsidiary Guaranty of such Person,
as the case may be; provided, however, that Senior Indebtedness shall not
include:
(A) any Obligation of such Person to any Subsidiary;
(B) any Indebtedness or other Obligation (and any
accrued and unpaid interest in respect thereof) of such Person
which is subordinate or junior in any respect to any other
Indebtedness or other Obligation of such Person;
(C) any Disqualified Stock; and
(D) that portion of any Indebtedness which at the time
of Incurrence is Incurred in violation of this Indenture.
"Senior Subordinated Indebtedness" means, with respect to a Person, the
8 3/8% Notes (in the case of the Company), a Subsidiary Guaranty (in the case of
a Subsidiary Guarantor) and any other Indebtedness of such Person that
specifically provides that such Indebtedness is to rank pari passu with the
8 3/8% Notes or such Subsidiary Guaranty, as the case may be, in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of such Person which is not Senior Indebtedness
of such Person.
"SFAS 133" means Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities."
27
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Mandatory Redemption Trigger" means the earliest to occur of
the following three events:
(1) December 31, 2002, if the Company has not acquired EEX by
merger on or before such date;
(2) the Company has abandoned the acquisition of EEX by
merger; or
(3) the Company has terminated its current agreement to
acquire EEX by merger or has modified such agreement in a manner that
will not permit the Company to give an Officers' Certificate to the
Escrow Agent authorizing it to release escrow funds to the Company's
order pursuant to the Escrow Agreement.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the 8 3/8% Notes
or a Subsidiary Guaranty of such Person, as the case may be, pursuant to a
written agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person;
or
(3) one or more Subsidiaries of such Person.
Unless otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"Subsidiary Guarantor" means each Subsidiary of the Company that
guarantees the 8 3/8% Notes pursuant to the terms of this Indenture, in each
case unless and until such Subsidiary is released from its obligations under its
Subsidiary Guaranty pursuant to the terms of this Indenture.
"Subsidiary Guaranty" means a Guarantee by a Subsidiary Guarantor of
the Company's obligations with respect to the 8 3/8% Notes.
28
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States
of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(2) investments in demand accounts, time deposit accounts,
bankers' acceptances, overnight bank deposits, certificates of deposit
and money market deposits maturing within twelve months of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any State
thereof or any foreign country recognized by the United States of
America, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $50.0 million (or the
foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money-market fund sponsored
by a registered broker dealer or mutual fund distributor;
(3) investments in deposits available for withdrawal on demand
with any commercial bank that is organized under the laws of any
country in which the Company or any Restricted Subsidiary maintains an
office or is engaged in the Oil and Gas Business, provided that (i) all
such deposits have been made in such accounts in the ordinary course of
business and (ii) such deposits do not at any one time exceed $10.0
million in the aggregate;
(4) repurchase (or reverse repurchase) obligations with a term
of not more than 30 days for underlying securities of the types
described in clause (1) above entered into with a bank meeting the
qualifications described in clause (2) above;
(5) investments in commercial paper, maturing not more than 90
days after the date of acquisition, issued by a corporation (other than
an Affiliate of the Company) organized and in existence under the laws
of the United States of America or any foreign country recognized by
the United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Xxxxx'x or
"A-1" (or higher) according to S&P; and
(6) investments in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at
least "A" by S&P or "A" by Xxxxx'x.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled 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 fixed
for redemption or, in the case of defeasance, prior to the date of deposit (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the then remaining average
life to
29
August 15, 2007 or, in the case of defeasance, to maturity; provided, however,
that if the average life to August 15, 2007 or maturity, as the case may be, of
the 8 3/8% Notes is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, 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 average life to August 15,
2007 or maturity, as the case may be, of the 8 3/8% Notes 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.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by it to administer its corporate trust business.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or holds any Lien on any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
1011 (the amount of such Restricted Payment being calculated in the manner set
forth in the definition of the term "Investment").
The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation (A) the Company could Incur $1.00 of additional Indebtedness
under Section 1010(a) and (B) no Default shall have occurred and be continuing.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means any Restricted Subsidiary if
30
(1) all of the Capital Stock of such Restricted Subsidiary,
other than any directors' qualifying shares and, in the case of
Newfield China, LDC, its preferred shares that are outstanding on the
Issue Date, is owned directly or indirectly by the Company or
(2) such Restricted Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of
such foreign jurisdiction to be partially owned by the government of
such foreign jurisdiction or individual or corporate citizens of such
foreign jurisdiction in order for such Restricted Subsidiary to
transact business in such foreign jurisdiction, provided that the
Company, directly or indirectly, owns the remaining Capital Stock of
such Restricted Subsidiary and, by contract or otherwise, controls the
management and business of such Restricted Subsidiary and derives the
economic benefits of ownership of such Restricted Subsidiary to
substantially the same extent as if such Restricted Subsidiary were a
wholly owned Subsidiary.
SECTION 3. Amendments to Article Five of the Original Indenture.
(a) The Events of Default are amended in Section 501 of the
Original Indenture with respect to the 8 3/8% Notes to read as follows:
(1) default in the payment of any interest upon the 8 3/8%
Notes when it becomes due and payable (whether or not such payment
shall be prohibited by Article Fourteen or Sixteen), and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any 8 3/8% Notes at its Maturity (whether or not such payment shall
be prohibited by Article Fourteen or Sixteen); or
(3) failure by the Company to comply with its obligations
under Section 801 or 1109; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or any Subsidiary Guarantor in this Indenture
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than the 8 3/8% Notes), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding 8 3/8% Notes a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company, any Subsidiary Guarantor or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
31
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
60 days and that:
(A) is for relief against the Company, any Subsidiary
Guarantor or any Significant Subsidiary as debtor in an
involuntary case;
(B) appoints a Custodian of the Company, any Subsidiary
Guarantor or any Significant Subsidiary or a Custodian for all
or substantially all of the property of the Company, any
Subsidiary Guarantor or any Significant Subsidiary; or
(C) orders the liquidation of the Company, any
Subsidiary Guarantor or any Significant Subsidiary; or
(7) principal of or interest on any Indebtedness (other than
Non-Recourse Purchase Money Indebtedness) of the Company, any
Subsidiary Guarantor or any Significant Subsidiary is not paid within
any applicable grace period after payment is due, or the principal
thereof is accelerated by the holders thereof because of a default, and
the total principal amount of such Indebtedness exceeds $10 million,
provided, however, if any such Indebtedness is repaid or any such
acceleration rescinded, within a period of 10 days beyond the
applicable grace period or the occurrence of such acceleration, as the
case may be, such Event of Default and any consequential acceleration
of the 8 3/8% Notes shall be automatically rescinded, so long as such
rescission does not conflict with any judgment or decree; or
(8) any judgment or decree for the payment of money in excess
of $10 million above the coverage under applicable insurance policies
and indemnities as to which the relevant insurer or indemnitor has not
disclaimed responsibility is entered against the Company, any
Subsidiary Guarantor or any Significant Subsidiary, remains outstanding
for a period of 60 consecutive days following the entry of such
judgment or decree and is not discharged, waived, stayed, satisfied or
bonded; or
(9) a Subsidiary Guaranty ceases to be in full force and
effect (other than in accordance with the terms of such Subsidiary
Guaranty) for five days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding 8 3/8% Notes a written notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or any Subsidiary Guarantor denies or disaffirms
its obligations under its Subsidiary Guaranty other than in accordance
with the terms of such Subsidiary Guaranty.
(b) The first paragraph of Section 502 of the Original
Indenture is amended in its entirety with respect to the 8 3/8% Notes
to read as follows:
32
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to the 8 3/8% Notes occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding 8 3/8% Notes may declare the
principal amount of all the 8 3/8% Notes, together with all accrued but unpaid
interest thereon, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount, together with all accrued but unpaid interest
thereon, shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to the 8 3/8% Notes occurs,
the principal amount of all the 8 3/8% Notes, together with all accrued but
unpaid interest thereon, shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become immediately due
and payable.
SECTION 4. Amendments to Articles Eight and Nine of the Original
Indenture.
(a) Section 801 of the Original Indenture is amended in its entirety
with respect to the 8 3/8% Notes to read as follows:
SECTION 801. Company and Subsidiary Guarantors May Consolidate, Etc., Only on
Certain Terms.
(a) The Company shall not consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the Company
or, in a single transaction or a series of related transactions, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets, unless:
(1) if the Company does not survive or the Company transfers,
conveys, sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity (for purposes of this Article
Eight, a "Successor Company") shall be a corporation, partnership,
limited liability company, trust or other Person organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving pro forma effect to such
transaction and treating any Indebtedness that becomes an obligation of
the Company or the Successor Company, as applicable, or any Subsidiary
as a result of such transaction as having been Incurred by it at the
time of such transaction, no Default shall have happened and be
continuing;
(3) immediately after giving pro forma effect to such
transaction, the Company or the Successor Company, as applicable, would
be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 1010(a);
33
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain
or loss for Federal income tax purposes as a result of such transaction
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
transaction had not occurred;
provided, however, that clause (3) will not be applicable (A) to the Company
consolidating with, merging into, conveying, transferring, leasing or otherwise
disposing of all or part of its assets to the Company or a Subsidiary Guarantor,
(B) to the Company merging with an Affiliate of the Company solely for the
purpose and with the sole effect of reincorporating the Company in another
jurisdiction within the United States of America or (C) at any time when the
Company and its Restricted Subsidiaries are not subject to the Suspended
Covenants. For purposes of this Section 801(a), the transfer, conveyance, sale,
lease or other disposition of all or substantially all of the assets of one or
more Subsidiaries of the Company, which assets, if held by the Company instead
of such Subsidiaries, would constitute all or substantially all of the assets of
the Company on a consolidated basis, shall be deemed to be the disposition of
all or substantially all of the assets of the Company.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into any Person, except another Subsidiary
Guarantor or the Company, unless:
(1) except in the case of a Subsidiary Guarantor whose Capital
Stock has been disposed of in its entirety to another Person (other
than to the Company or an Affiliate of the Company), including through
a merger or consolidation, if in connection therewith the Company
complies with its obligations under Section 1014 in respect of such
disposition, the resulting or surviving Person (if not such Subsidiary)
shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary Guarantor was organized or
under the laws of the United States of America, or any State thereof or
the District of Columbia, and such Person shall expressly assume, by a
Guaranty Agreement, all the obligations of such Subsidiary Guarantor
under its Subsidiary Guaranty;
(2) immediately after giving effect to such transaction on a
pro forma basis (and treating any Indebtedness which becomes an
obligation of the resulting or surviving Person as a result of such
transaction as having been issued by such Person at the time of such
transaction), no Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation or merger and such Guaranty Agreement comply with this
Indenture.
34
(b) Sections 901 and 902 of the Original Indenture are amended
in their entirety with respect to the 8 3/8% Notes to read as follows:
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to cure any ambiguity, omission, defect or inconsistency
in this Indenture; or
(2) to add to the covenants of the Company or a Subsidiary
Guarantor for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or a
Subsidiary Guarantor; or
(3) to comply with Article Eight; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities (other than the 8 3/8% Notes) in bearer
form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form (provided that any uncertificated
8 3/8% Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated 8 3/8%
Notes are described in Section 163(f)(2)(B) of the Code); or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more other series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any 8 3/8% Note entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any 8 3/8% Note
with respect to such provision or (B) shall become effective only when
there is no 8 3/8% Note Outstanding; or
(6) to secure the Securities or provide for the guarantee of
the Company's obligations under this Indenture and with respect to the
Securities by another Person; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
35
(9) to make any other change or provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (9) shall not adversely affect the
interests of the Noteholders in any material respect; or
(10) to make any change in Article Fourteen or Sixteen that
would limit or terminate the benefits available to any holder of Senior
Indebtedness thereunder.
An amendment under this Section 901 may not make any change that would
adversely affect the rights under Article Fourteen or Sixteen of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their Representatives) consent to such change or unless the
notes, debentures, bonds or other similar instruments evidencing such Senior
Indebtedness so permit.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (including consents obtained in connection with a tender
or exchange offer for the 8 3/8% Notes), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding 8 3/8% Note affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any 8 3/8% Note, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or
currency in which the principal of any 8 3/8% Note or any premium or
interest thereon is payable, or change the time at which any 8 3/8%
Note may be redeemed pursuant to Article Three, or impair the right
under Section 508 of any Noteholder to receive any payment on such
Holder's 8 3/8% Notes on or after the due date thereof or to institute
suit for the enforcement of any such payment;
(2) reduce the percentage in principal amount of the
Outstanding 8 3/8% Notes, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver provided for in Section 513 of this Indenture;
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1008, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8);
36
(4) make any change in the ranking or priority of any 8 3/8%
Note that would adversely affect the Noteholders in any material
respect; or
(5) make any change in any Subsidiary Guaranty that would
adversely affect the Noteholders in any material respect.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Notwithstanding the foregoing, the provisions under this Indenture
relating to the Company's obligations to make a Change of Control Offer may be
waived or amended with the written consent of the Holders of a majority in
principal amount of the 8 3/8% Notes.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
An amendment under this Section 902 may not make any change that would
adversely affect the rights under Article Fourteen or Sixteen of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their Representatives) consent to such change or unless the
notes, debentures, bonds or other similar instruments evidencing such Senior
Indebtedness so permit.
SECTION 5. Amendments to Article Ten of the Original Indenture.
(a) Section 1001 of the Original Indenture is amended with
respect to the 8 3/8% Notes by adding the following paragraphs thereto:
Principal and interest shall be considered paid on the date due if by
11:00 a.m., New York City time, on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money, in immediately available funds,
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Noteholders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the 8 3/8% Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Section 1005 of the Original Indenture is amended with
respect to the 8 3/8% Notes by substituting the word "Company" for the words
"Board of Directors" therein.
(c) Article Ten of the Original Indenture is amended with
respect to the 8 3/8% Notes by adding Sections 1009 through 1018, inclusive, as
follows:
SECTION 1009. Commission Reports.
37
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file
with the Commission and provide the Trustee and Noteholders with such annual
reports and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation
subject to such Sections (but without exhibits in the case of Noteholders), such
information, documents and other reports to be so filed and provided at the
times specified for the filing of such information, documents and reports under
such Sections.
Delivery of the reports, information and documents specified in the
preceding paragraph to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely on Officers' Certificates).
SECTION 1010. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided,
however, that the Company and the Subsidiary Guarantors shall be entitled to
Incur Indebtedness if, on the date of such Incurrence and after giving effect
thereto on a pro forma basis, no Default has occurred and is continuing and the
Consolidated Coverage Ratio exceeds 2.5 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company and the
Restricted Subsidiaries shall be entitled to Incur any or all of the following
Indebtedness:
(1) Indebtedness Incurred by the Company and its Restricted
Subsidiaries pursuant to Credit Facilities; provided, however, that,
immediately after giving effect to any such Incurrence, the aggregate
principal amount of all Indebtedness Incurred under this clause (1) and
then outstanding does not exceed the greater of (A) $425 million less
the sum of all principal payments with respect to such Indebtedness
pursuant to Section 1014(a)(3)(A) and (B) $200 million plus 20% of
ACNTA as of the date of such Incurrence;
(2) Indebtedness owed to and held by the Company or a Wholly
Owned Subsidiary; provided, however, that (A) any subsequent issuance
or transfer of any Capital Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company is the obligor on such Indebtedness, unless such Indebtedness
is owing to a Subsidiary Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations
with respect to the 8 3/8% Notes;
(3) the 8 3/8% Notes (excluding any Additional 8 3/8% Notes)
and all Subsidiary Guaranties;
38
(4) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2) or (3) of this Section
1010(b));
(5) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Subsidiary became a
Restricted Subsidiary or was acquired by the Company (other than
Indebtedness Incurred in connection with, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary became a Restricted Subsidiary or was acquired by the
Company); provided, however, that on the date such Subsidiary became a
Restricted Subsidiary or was acquired by the Company and after giving
pro forma effect thereto, the Company would have been able to Incur at
least $1.00 of additional Indebtedness pursuant to Section 1010(a);
(6) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to Section 1010(a) or pursuant to clause (3), (4) or
(5) of this Section 1010(b) or this clause (6); provided, however, that
to the extent such Refinancing Indebtedness directly or indirectly
Refinances Indebtedness of a Restricted Subsidiary Incurred pursuant to
clause (5), such Refinancing Indebtedness shall be Incurred only by
such Restricted Subsidiary or the Company;
(7) Hedging Obligations consisting of Interest Rate Agreements
directly related to Indebtedness outstanding on the Issue Date or
permitted to be Incurred by the Company and the Restricted Subsidiaries
pursuant to this Indenture;
(8) Hedging Obligations consisting of Oil and Natural Gas
Hedging Contracts and Currency Agreements entered into in the ordinary
course of business for the purpose of limiting risks that arise in the
ordinary course of business of the Company and its Subsidiaries;
(9) obligations in respect of performance, bid and surety
bonds, including Guarantees and letters of credit functioning as or
supporting such performance, bid and surety bonds, completion
guarantees and other reimbursement obligations provided by the Company
or any Restricted Subsidiary in the ordinary course of business (in
each case other than for an obligation for money borrowed);
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within two
Business Days of its Incurrence;
(11) Indebtedness consisting of any Guarantee by the Company
or a Subsidiary Guarantor of Indebtedness of the Company or a
Subsidiary Guarantor outstanding on the Issue Date or permitted by this
Indenture to be Incurred by the Company or a Subsidiary Guarantor;
(12) Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
Incurred for the purpose of financing all or any part of the purchase
price, cost of construction or improvement or
39
carrying cost of assets used in the business of the Company and its
Restricted Subsidiaries and related financing costs, and Refinancing
Indebtedness Incurred to Refinance any Indebtedness Incurred pursuant
to this clause, in an aggregate principal amount at any one time
outstanding not to exceed $25 million;
(13) Indebtedness arising from any agreement providing for
indemnities, Guarantees, purchase price adjustments, holdbacks,
contingency payment obligations based on the performance of the
acquired or disposed assets or similar obligations (other than
Guarantees of Indebtedness) Incurred by any Person in connection with
the acquisition or disposition of assets;
(14) in-kind obligations relating to net oil or natural gas
balancing positions arising in the ordinary course of business;
(15) Non-Recourse Purchase Money Indebtedness; and
(16) Indebtedness of the Company or its Restricted
Subsidiaries in an aggregate principal amount which, when taken
together with all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (1) through (15) of this Section
1010(b) or Section 1010(a)) does not exceed $50 million.
(c) Notwithstanding the foregoing, the Company shall not, and shall not
permit any Subsidiary Guarantor to, Incur any Indebtedness pursuant to Section
1010(b) if the proceeds thereof are used, directly or indirectly, to Refinance
any Subordinated Obligations of the Company or any Subsidiary Guarantor unless
such Indebtedness shall be subordinated to the 8 3/8% Notes or the applicable
Subsidiary Guaranty to at least the same extent as such Subordinated
Obligations.
(d) For purposes of determining compliance with this Section 1010, any
Indebtedness remaining outstanding under the Revolving Credit Facility on the
Issue Date shall be treated as Incurred on such date under Section 1010(b)(1).
Further, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Indebtedness described above (including Section
1010(a)), (1) the Company, in its sole discretion, may classify such item of
Indebtedness (or any portion thereof) as of the time of Incurrence, in any
manner that complies with this Section 1010, (2) the Company will only be
required to include the amount and type of such Indebtedness in one of the above
categories and (3) the Company shall be entitled to divide and classify such
item of Indebtedness in more than one of the categories of Indebtedness
described in Section 1010(a) or 1010(b).
(e) Notwithstanding Section 1010(a) or 1010(b), the Company shall not,
and shall not permit any Subsidiary Guarantor to, Incur, directly or indirectly,
any Indebtedness if such Indebtedness is contractually subordinate or junior in
right of payment to any Senior Indebtedness of such Person, unless such
Indebtedness is Senior Subordinated Indebtedness of such Person or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness of such
Person. Unsecured Indebtedness shall not be deemed to be subordinated or junior
to Secured Indebtedness merely because it is unsecured.
40
SECTION 1011. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not entitled to Incur an additional $1.00
of Indebtedness pursuant to Section 1010(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of
(without duplication):
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter during which the Issue Date
occurs to the end of the most recent fiscal quarter for which
financial statements of the Company are publicly available
prior to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit); plus
(B) 100% of the aggregate Net Cash Proceeds or the fair
market value of property other than cash (including Capital
Stock of Persons engaged in the Oil and Gas Business or assets
used in the Oil and Gas Business) received by the Company from
the issuance or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other than
an issuance or sale (w) in connection with the acquisition of
EEX by merger, (x) to a Subsidiary of the Company and (y) to
an employee stock ownership plan or (z) to a trust established
by the Company or any of its Subsidiaries for the benefit of
their employees) and 100% of any capital contribution received
by the Company from its shareholders subsequent to the Issue
Date; plus
(C) the aggregate Net Cash Proceeds received by the
Company subsequent to the Issue Date from the issuance or sale
of its Capital Stock (other than Disqualified Stock) to an
employee stock ownership plan or to a trust established by the
Company or any of its Subsidiaries for the benefit of their
employees; provided, however, that if such employee stock
ownership plan or trust Incurs any Indebtedness to finance the
purchase of such Capital Stock, such aggregate amount shall be
limited to the excess of such Net Cash Proceeds over the
amount of such Indebtedness plus an amount equal to any
increase in the Consolidated Net Worth of the Company
resulting from principal repayments made from time to time by
such employee stock ownership plan or trust with respect to
such Indebtedness; plus
(D) the amount by which Indebtedness of the Company is
reduced on the Company's balance sheet upon the conversion or
exchange (other than by a Subsidiary of the Company)
subsequent to the Issue Date of any Indebtedness of
41
the Company convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the
amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange);
provided, however, that the foregoing amount shall not exceed
the Net Cash Proceeds received by the Company or any
Restricted Subsidiary from the sale of such Indebtedness
(excluding Net Cash Proceeds from sales to a Subsidiary of the
Company or to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the
benefit of their employees); plus
(E) an amount equal to the sum of (x) the net reduction
in the Investments (other than Permitted Investments) made by
the Company or any Restricted Subsidiary in any Person
resulting from repurchases, repayments or redemptions of such
Investments by such Person, proceeds realized on the sale of
such Investment and proceeds representing the return of
capital (excluding dividends and distributions), in each case
received by the Company or any Restricted Subsidiary and (y)
to the extent such Person is an Unrestricted Subsidiary, the
portion (proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net assets of
such Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that to the extent the foregoing sum exceeds, in the
case of any such Person or Unrestricted Subsidiary, the amount
of Investments (excluding Permitted Investments) previously
made (and treated as a Restricted Payment) by the Company or
any Restricted Subsidiary in such Person or Unrestricted
Subsidiary, such excess shall not be included in this clause
(E) unless the amount represented by such excess has not been
and will not be taken into account in one of clauses (A)-(D)
of this Section 1011(a); plus
(F) $15.0 million.
(b) The provisions of Section 1011(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds
of the substantially concurrent issuance or sale of, or made by
conversion into or exchange for, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to
a Subsidiary of the Company or an employee stock ownership plan or to a
trust established by the Company or any of its Subsidiaries for the
benefit of their employees) or a substantially concurrent cash capital
contribution received by the Company from one or more of its
shareholders; provided, however, that (A) such Restricted Payment shall
be excluded in the calculation of the amount of Restricted Payments and
(B) the Net Cash Proceeds from such sale or such cash capital
contribution (to the extent so used for such Restricted Payment) shall
be excluded from the calculation of amounts under Section
1011(a)(3)(B);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or any Subsidiary Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent
42
sale of, Indebtedness which is permitted to be Incurred pursuant to
Section 1010; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value
shall be excluded in the calculation of the amount of Restricted
Payments;
(3) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Disqualified Stock of the
Company or a Subsidiary Guarantor made by conversion into or exchange
for, or out of the proceeds of the substantially concurrent issuance or
sale (other than to a Subsidiary of the Company or an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) of, Disqualified Stock
of the Company which is permitted to be issued pursuant to Section
1010; provided, however, that such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be
excluded in the calculation of the amount of Restricted Payments;
(4) (A) distributions on the Existing Trust Preferred
Securities at a rate per annum not to exceed 6.5% of the $50
liquidation preference per Existing Trust Preferred Security and (B)
other dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have
complied with this Section 1011; provided, however, that at the time of
payment of such distribution or dividend, no other Default shall have
occurred and be continuing (or result therefrom); provided further,
however, that such distribution or dividend shall be included in the
calculation of the amount of Restricted Payments at the time of
payment;
(5) so long as no Default has occurred and is continuing, the
purchase, redemption or other acquisition or retirement for value of
shares of Capital Stock of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant
to the terms of the agreements (including employment agreements) or
plans (or amendments thereto) approved by the Board of Directors under
which such individuals purchase or sell or are granted the option to
purchase or sell, shares of such Capital Stock; provided, however, that
the aggregate amount of such purchases, redemptions and other
acquisitions and retirements (excluding amounts representing
cancellation of Indebtedness) shall not exceed $2.0 million in any
calendar year; provided further, however, that such purchases,
redemptions and other acquisitions and retirements shall be excluded in
the calculation of the amount of Restricted Payments;
(6) repurchases, acquisitions or retirements of shares of
Company common stock deemed to occur upon the exercise of stock options
or similar rights issued under employee benefit plans when shares are
surrendered to pay all or a portion of the exercise price or to satisfy
any federal income tax obligations; provided, however, that such
repurchases, acquisitions or retirements shall be excluded in the
calculation of the amount of Restricted Payments;
(7) the payment of cash in lieu of fractional shares of
Capital Stock in connection with any transaction otherwise permitted
under this Section 1011; provided,
43
however, that such payment will be excluded in the calculation of the
amount of Restricted Payments;
(8) upon the occurrence of a Change of Control or an Asset
Disposition and within 60 days after the completion of the offer to
repurchase the 8 3/8% Notes pursuant to Section 1014 or 1016 (including
the purchase of all 8 3/8% Notes tendered), any purchase, repurchase,
redemption, defeasance, acquisition or other retirement for value of
Subordinated Obligations required pursuant to the terms thereof as a
result of such Change of Control or Asset Disposition at a purchase or
redemption price not to exceed 101% of the outstanding principal amount
thereof, plus accrued and unpaid interest thereon, if any; provided,
however, that (A) at the time of such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value, no Default
shall have occurred and be continuing (or would result therefrom), and
(B) such purchase, repurchase, redemption, defeasance or other
acquisition and retirement for value will be excluded in the
calculation of the amount of Restricted Payments; or
(9) any redemption pursuant to a Qualified Redemption
Transaction; provided, however, that such redemption shall be included
in the calculation of the amount of Restricted Payments at the time of
the redemption.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the assets proposed
to be transferred by the Company or such Restricted Subsidiary, as the case may
be, in accordance with the Restricted Payment.
For purposes of determining compliance with this Section 1011, in the
event that a Restricted Payment meets the criteria of more than one of the types
of Restricted Payments described above, the Company, in its sole discretion, may
order and classify such Restricted Payment in any manner in compliance with this
Section 1011.
SECTION 1012. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to
the Company, (b) make any loans or advances to the Company or (c) transfer any
of its property or assets to the Company, except:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an agreement
governing Indebtedness, Capital Stock and other agreements or
instruments in effect at or entered into on the Issue Date, including
the Revolving Credit Facility, this Indenture, the 8 3/8% Notes and the
Subsidiary Guaranties;
(B) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary or Capital Stock or
other agreement or instrument of such Restricted
44
Subsidiary in existence on or prior to the date on which such
Restricted Subsidiary was acquired (including by merger or otherwise)
by the Company or otherwise became a Restricted Subsidiary (other than
Indebtedness Incurred, Capital Stock issued or agreements or
instruments entered into as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Company) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing in whole or in part of Indebtedness Incurred
pursuant to an agreement referred to in Section 1012(1)(A) or
1012(1)(B) or this clause (C) or Section 1012(2)(B) or contained in any
amendment to, or modification, restatement, renewal, increase,
supplement, replacement, or extension of, an agreement referred to in
Section 1012(1)(A) or 1012(1)(B) or this clause (C) or Section
1012(2)(B); provided, however, that the encumbrances and restrictions
with respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment, modification, restatement, renewal,
increase, supplement, replacement or extension agreement are not
materially more restrictive, taken as a whole, than encumbrances and
restrictions with respect to such Restricted Subsidiary contained in
such predecessor agreements;
(D) any customary encumbrance or restriction with respect to a
Restricted Subsidiary imposed pursuant to a merger agreement or an
agreement entered into for the sale or disposition of the Capital Stock
or assets of such Restricted Subsidiary pending the closing of such
sale or disposition;
(E) customary encumbrances and restrictions contained in
agreements of the types described in the definition of the term
"Permitted Business Investments";
(F) customary supermajority voting provisions and other
customary provisions with respect to the disposition or distribution of
assets, each contained in corporate charters, bylaws, stockholders'
agreements, limited liability company agreements, partnership
agreements, joint venture agreements and other similar agreements
entered into in the ordinary course of business of the Company and its
Restricted Subsidiaries; and
(2) with respect to clause (c) only,
(A) any such encumbrance or restriction consisting of
customary nonassignment provisions (including provisions forbidding
subletting or sublicensing) in leases governing leasehold interests and
licenses to the extent such provisions restrict the transfer of the
lease or license or the property leased or licensed thereunder;
(B) any encumbrance or restriction contained in credit
agreements, security agreements or mortgages securing Indebtedness of
the Company or a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such
credit agreements, security agreements or mortgages;
45
(C) encumbrances and restrictions contained in any agreement,
instrument or Capital Stock assumed by the Company or any of its
Restricted Subsidiaries or for which any of them becomes liable as in
effect at the time of such transaction (except to the extent such
agreement, instrument or Capital Stock was entered into in connection
with or in contemplation of such transaction), which encumbrances and
restrictions are not applicable to any assets other than assets
acquired in connection with such transaction and all improvements,
additions and accessions thereto and products and proceeds thereof;
(D) restrictions on cash or other deposits imposed by
customers under contracts entered into in the ordinary course of
business;
(E) encumbrances and restrictions contained in contracts
entered into in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate,
detract from the value of, or from the ability of the Company and the
Restricted Subsidiaries to realize the value of, property or assets of
the Company or any Restricted Subsidiary in any manner material to the
Company or any Restricted Subsidiary; and
(F) restrictions on the transfer of property or assets
required by any regulatory authority having jurisdiction over the
Company or such Restricted Subsidiary.
SECTION 1013. Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary Guarantor
to, directly or indirectly, create, incur, assume or suffer to exist or become
effective any Lien securing Indebtedness of any kind except for Permitted Liens,
on or with respect to any of its assets, whether owned at the Issue Date or
thereafter acquired, unless (A) in the case of any Lien securing Subordinated
Obligations, the 8 3/8% Notes are secured by a Lien on such assets that is
senior in priority to such Lien and (B) in the case of any other Lien, the 8
3/8% Notes are either secured equally and ratably with such Indebtedness or are
secured by a Lien on such assets that is senior in priority to such Lien.
SECTION 1014. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least equal to
the fair market value (including the value of all non-cash
consideration) as determined in good faith by the Board of Directors,
an Officer or an officer of such Restricted Subsidiary with
responsibility for such transaction, which determination shall be
conclusive evidence of compliance with this provision, of the shares or
assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash, cash
equivalents, oil and natural gas
46
properties or capital assets to be used by the Company or any
Restricted Subsidiary in the Oil and Gas Business; and
(3) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be)
(A) first, to the extent the Company so elects (or is required
by the terms of any Indebtedness), to prepay, repay, purchase,
repurchase, redeem, defease or otherwise acquire or retire for value
Senior Indebtedness (other than Disqualified Stock) of the Company or
any Subsidiary Guarantor or Indebtedness of a Wholly Owned Subsidiary
that is not a Subsidiary Guarantor (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company) within
one year from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available
Cash after application in accordance with clause (A), to the extent the
Company so elects, to acquire Additional Assets or make capital
expenditures in the Oil and Gas Business within one year from the later
of the date of such Asset Disposition or the receipt of such Net
Available Cash; and
(C) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B), to make
an offer to the Holders of the 8 3/8% Notes (and to holders of other
Senior Subordinated Indebtedness of the Company designated by the
Company) to purchase 8 3/8% Notes (and such other Senior Subordinated
Indebtedness of the Company) pursuant to and subject to the conditions
of this Section 1014;
provided, however, that in connection with any prepayment, repayment, purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness pursuant to clause (A) or (C) of this Section 1014(a)(3), the
Company or such Restricted Subsidiary shall permanently retire such Indebtedness
and shall cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 1014, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 1014 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions which is not
applied in accordance with this Section 1014(a) exceeds $20 million. Pending
application of Net Available Cash pursuant to this Section 1014(a), such Net
Available Cash shall be invested in Temporary Cash Investments or applied to
temporarily reduce revolving credit indebtedness.
For the purposes of clause (a)(2) of this Section 1014, the following
are deemed to be cash or cash equivalents: (1) the release of, pursuant to a
novation or other agreement, or the discharge of, the Company or such Restricted
Subsidiary from all liability on Indebtedness in connection with such Asset
Disposition; and (2) securities received by the Company or any
47
Restricted Subsidiary from the transferee that are converted by the Company or
such Restricted Subsidiary into cash within 120 days of their receipt.
Notwithstanding the foregoing, the 75% limitation referred to in
paragraph (a)(2) of this Section 1014 shall be deemed satisfied with respect to
any Asset Disposition in which the cash or cash equivalents portion of the
consideration received therefrom, determined in accordance with the foregoing
provision on an after-tax basis, is equal to or greater than what the after-tax
proceeds would have been had such Asset Disposition complied with the
aforementioned 75% limitation.
The requirement of Section 1014(a)(3)(B) shall be deemed satisfied if
an agreement (including a lease, whether a capital lease or an operating lease)
committing to make the acquisitions or expenditures referred to therein is
entered into by the Company or its Restricted Subsidiary within the time period
specified in such clause and such Net Available Cash is subsequently applied in
accordance with such agreement within six months following such agreement.
(b) In the event of an Asset Disposition that requires the purchase of
8 3/8% Notes (and other Senior Subordinated Indebtedness of the Company)
pursuant to Section 1014(a)(3)(C), the Company shall make such offer to purchase
8 3/8% Notes (the "Offer") on or before the 366th day after the later of the
date of such Asset Disposition or the receipt of such Net Available Cash, and
will purchase 8 3/8% Notes tendered pursuant to the Offer by the Company for the
8 3/8% Notes (and such other Senior Subordinated Indebtedness of the Company) at
a purchase price of 100% of their principal amount (or, in the event such other
Senior Subordinated Indebtedness of the Company was issued with significant
original issue discount, 100% of the accreted value thereof) without premium,
plus accrued but unpaid interest (or, in respect of such other Senior
Subordinated Indebtedness of the Company, such lesser price, if any, as may be
provided for by the terms of such Senior Subordinated Indebtedness of the
Company) in accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. If the aggregate purchase price
of 8 3/8% Notes and any other Senior Subordinated Indebtedness tendered exceeds
the Net Available Cash allotted to their purchase, the Company shall select the
8 3/8% Notes and other Senior Subordinated Indebtedness to be purchased on a pro
rata basis but in round denominations, which in the case of the 8 3/8% Notes
shall be denominations of $1,000 principal amount or multiples thereof. The
Company shall not be required to make such an Offer to purchase 8 3/8% Notes
(and other Senior Subordinated Indebtedness of the Company) pursuant to this
Section 1014 if the Net Available Cash available therefor is less than $20
million (which lesser amount shall be carried forward for purposes of
determining whether such an Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall deliver to the Trustee and
send, by first-class mail to each Holder, a written notice stating that the
Holder may elect to have its 8 3/8% Notes purchased by the Company either in
whole or in part (subject to prorating as described in Section 1014(b) in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Company which the Company in good
48
faith believes will enable such Holders to make an informed decision and all
instructions and materials necessary to tender 8 3/8% Notes pursuant to the
Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall
deliver to the Trustee an Officers' Certificate as to (A) the amount of
the Offer (the "Offer Amount"), including information as to any other
Senior Subordinated Indebtedness included in the Offer, (B) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (C) the compliance of
such allocation with the provisions of Section 1014(a) and (b). On or
before 11:00 a.m., New York City time, on the Purchase Date, the
Company shall irrevocably deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust) immediately available funds in an amount equal to
the Offer Amount to be held for payment in accordance with the
provisions of this Section. If the Offer includes other Senior
Subordinated Indebtedness, the deposit described in the preceding
sentence may be made with any other paying agent pursuant to
arrangements satisfactory to the Trustee. Upon the expiration of the
period for which the Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the 8 3/8% Notes
or portions thereof which have been properly tendered to and are to be
accepted by the Company. The Trustee shall, on the Purchase Date, mail
or deliver payment (or cause the delivery of payment) to each tendering
Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the 8 3/8% Notes delivered by the Company
to the Trustee is less than the Offer Amount applicable to the 8 3/8%
Notes, the Trustee shall deliver the excess to the Company immediately
after the expiration of the Offer Period. Upon completion of an Offer,
Net Available Cash shall be deemed to be reduced by the Offer Amount.
(3) Holders electing to have an 8 3/8% Notes purchased shall
be required to surrender the 8 3/8% Note, with the form "Option of
Holder to Elect Purchase" on the reverse duly completed, to the Company
at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one
Business Day prior to the Purchase Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the 8 3/8% Notes which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing its election to have such 8
3/8% Notes purchased. Holders whose Securities are purchased only in
part shall be issued new 8 3/8% Notes equal in principal amount to the
unpurchased portion of the 8 3/8% Notes surrendered.
(4) At the time the Company delivers 8 3/8% Notes to the
Trustee which are to be accepted for purchase, the Company shall also
deliver an Officers' Certificate stating that such 8 3/8% Notes are to
be accepted by the Company pursuant to and in accordance with the terms
of this Section. An 8 3/8% Note shall be deemed to have been accepted
for purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.
49
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of 8 3/8% Notes pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue of its compliance
with such securities laws or regulations.
SECTION 1015. Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any transaction (including the purchase, sale, lease
or exchange of any property, employee compensation arrangements or the rendering
of any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless:
(1) the terms of the Affiliate Transaction are no less
favorable to the Company or such Restricted Subsidiary than those that
could reasonably be expected to be obtained at the time of the
Affiliate Transaction in arm's-length dealings with a Person who is not
an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess
of $15 million, the terms of the Affiliate Transaction are set forth in
writing and a majority of the non-employee directors of the Company
disinterested with respect to such Affiliate Transaction shall have
determined in good faith that the criteria set forth in clause (1) are
satisfied and shall have approved the relevant Affiliate Transaction as
evidenced by a resolution of the Board of Directors; and
(3) if such Affiliate Transaction involves an amount in excess
of $30 million, the Board of Directors shall have received a written
opinion from an Independent Qualified Party to the effect that such
Affiliate Transaction is fair, from a financial standpoint, to the
Company and its Restricted Subsidiaries or is not less favorable to the
Company and its Restricted Subsidiaries than could reasonably be
expected to be obtained at the time in an arm's-length transaction with
a Person who was not an Affiliate.
(b) The provisions of Section 1015(a) shall not prohibit:
(1) any Investment or other Restricted Payment, in each case
not prohibited to be made pursuant to Section 1011;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans and
other benefit plans approved by the Board of Directors;
(3) loans or advances to officers, directors and employees who
are Affiliates in the ordinary course of business of the Company or its
Restricted Subsidiaries, but in
50
any event not to exceed $3.0 million in the aggregate outstanding at
any one time;
(4) any transaction between or among the Company, a Restricted
Subsidiary or joint venture or similar Person that would constitute an
Affiliate Transaction solely because the Company or a Restricted
Subsidiary owns an equity interest in or otherwise controls such
Restricted Subsidiary, joint venture or similar Person;
(5) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company;
(6) reasonable fees and reasonable compensation paid to, and
indemnity and similar arrangements provided on behalf of, officers,
directors and employees of the Company or any Restricted Subsidiary as
determined in good faith by the Board of Directors or the Company's
senior management; and
(7) any agreement as in effect on the Issue Date and described
in the prospectus pursuant to which the 8 3/8% Notes were offered and
sold, or any renewals or extensions of any such agreement (so long as
such renewals or extensions are not less favorable to the Company or
the Restricted Subsidiaries) and the transactions evidenced thereby.
SECTION 1016. Change of Control.
(a) Upon the occurrence of a Change of Control, then unless the Company
shall have exercised its right to redeem all the 8 3/8% Notes, each Holder shall
have the right to require that the Company repurchase such Holder's 8 3/8% Notes
at a purchase price in cash equal to 101% of the principal amount thereof on the
date of the purchase plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of holders of record on the relevant record date
to receive interest due on the relevant Interest Payment Date), in accordance
with the terms contemplated in Section 1016(b).
(b) Unless the Company has exercised its right to redeem all the 8 3/8%
Notes and shall have delivered an irrevocable notice of redemption to the
Trustee, then within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer") stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's 8 3/8%
Notes at a purchase price in cash equal to 101% of the principal amount
thereof on the date of purchase, plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record
on the relevant record date to receive interest on the relevant
Interest Payment Date);
(2) the circumstances and relevant facts regarding such Change
of Control (including information with respect to pro forma historical
income, cash flow and capitalization, in each case after giving effect
to such Change of Control);
51
(3) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(4) the instructions, as determined by the Company, consistent
with this Section 1016, that a Holder must follow in order to have its
8 3/8% Notes purchased.
(c) Holders electing to have an 8 3/8% Note purchased will be required
to surrender the 8 3/8% Note, with the "Option of Holder to Elect Purchase" on
the reverse form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the purchase date. Holders will be
entitled to withdraw their election if the Trustee or the Company receives not
later than one Business Day prior to the purchase date, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the 8
3/8% Note which was delivered for purchase by the Holder and a statement that
such Holder is withdrawing its election to have such 8 3/8% Note purchased.
(d) On the purchase date, all 8 3/8% Notes purchased by the Company
under this Section shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Company shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 1016 and purchases all 8 3/8% Notes validly tendered and not
withdrawn under such Change of Control Offer.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of 8 3/8% Notes as a result of
a Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue of its compliance
with such securities laws or regulations.
SECTION 1017. Future Guarantors.
The Company shall cause each Restricted Subsidiary that Guarantees or
secures any Indebtedness of the Company to, at the same time, execute and
deliver to the Trustee a Guaranty Agreement pursuant to which such Restricted
Subsidiary will Guarantee payment of the Securities on the same terms and
conditions as those set forth in this Indenture.
SECTION 1018. Covenant Suspension.
(a) During any period that the 8 3/8% Notes have a rating equal to or
higher than BBB- by S&P and Baa3 by Xxxxx'x (each, an "Investment Grade Rating")
and no Default has occurred and is continuing, the Company and the Restricted
Subsidiaries will not be subject to
52
Sections 1010(a) through (d), 1011, 1012, 1014, 1015, 1017 and 801(a)(3)
(collectively, the "Suspended Covenants").
(b) In the event that the Company and the Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time as a result of the
operation of clause (a) of this Section 1018, and subsequently one or both of
S&P and Xxxxx'x downgrades the rating assigned to the 8 3/8% Notes below their
respective Investment Grade Rating, then the Company and the Restricted
Subsidiaries will thereafter again be subject to the Suspended Covenants
(subject to subsequent suspension of the 8 3/8% Notes again receive Investment
Grade Ratings), and, with respect to Restricted Payments proposed to be made
after the time of such downgrade, the permissibility of such proposed Restricted
Payments will be calculated in accordance with Section 1011 as though Section
1011 had been in effect since the Issue Date, it being understood, however, that
no actions taken by the Company or any Restricted Subsidiary during the
suspension period shall constitute a Default or an Event of Default under the
Suspended Covenants.
SECTION 6. Amendments to Article Eleven of the Original Indenture.
(a) Section 1105 of the Original Indenture is amended with respect to
the 8 3/8% Notes in its entirety to read as follows:
On or prior to 11:00 a.m., New York City time, on the
Redemption Date for any 8 3/8% Notes, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money, in immediately available funds, sufficient to
pay the Redemption Price of and accrued interest on (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant Interest Payment Date that is on or prior
to the Redemption Date) such Securities or any portions thereof that
are to be redeemed on that date, it being understood that the amount of
money to be deposited by the Company in relation to a mandatory
redemption pursuant to Section 1109 shall take into consideration the
amount of money deposited by the Escrow Agent with the Trustee or a
Paying Agent to fund such redemption.
(b) Section 1107 of the Original Indenture is amended with respect to
the 8 3/8% Notes to add the following paragraph thereto:
Any 8 3/8% Note of $1,000 or less principal amount shall be
redeemed only as a whole and not in part.
(c) Article Eleven of the Original Indenture is amended with respect to
the 8 3/8% Notes by adding Sections 1108, 1109 and 1110 as follows:
SECTION 1108. Optional Redemption.
(a) Except as set forth in the following paragraphs of this Section
1108, the 8 3/8% Notes will not be redeemable at the option of the Company prior
to August 15, 2007. Starting on
53
that date, the Company may redeem all or any portion of the 8 3/8% Notes, upon
no less than 30 nor more than 60 days prior notice, at the Redemption Prices set
forth below, plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date). The following
prices are for 8 3/8% Notes redeemed during the 12-month period commencing on
August 15 of the years set forth below, and are expressed as percentages of
principal amount:
Redemption
Year Price
------------------- ----------
2007 104.188%
2008 102.792%
2009 101.405%
2010 and thereafter 100.000%
(b) The Company may on any one or more occasions prior to August 15,
2005, redeem up to 35% of the aggregate principal amount of the 8 3/8% Notes
(including any Additional 8 3/8% Notes) originally issued prior to the
Redemption Date with the Net Proceeds of one or more Public Equity Offerings at
a Redemption Price of 108.375% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption, subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date, provided that at least 65% of the aggregate
principal amount of the 8 3/8% Notes (including any Additional 8 3/8% Notes)
originally issued prior to the Redemption Date remains Outstanding after the
occurrence of such redemption. Any such redemption shall occur not later than 90
days after the date of the closing of any such Public Equity Offering upon not
less than 30 nor more than 60 days' prior notice. The redemption shall be made
in accordance with procedures set forth in this Indenture.
(c) At any time prior to August 15, 2007, the Company may redeem the
8 3/8% Notes at its option, as a whole, at a Redemption Price equal to 100% of
the principal amount thereof plus the Applicable Premium as of, and accrued and
unpaid interest to, the Redemption Date. For purposes of Section 1104, it shall
be sufficient if a notice of redemption pursuant to this Section 1108(c) shall
describe the method for determining the Redemption Price in lieu of stating the
Redemption Price.
SECTION 1109. Mandatory Redemption.
Following the occurrence of the Special Mandatory Redemption Trigger,
the Company shall redeem the 8 3/8% Notes as a whole, upon notice as provided in
this Section 1109, at a Redemption Price equal to 101% of the principal amount
thereof plus accrued and unpaid interest to the Redemption Date. Notwithstanding
the provisions of Section 1104, notice of such mandatory redemption shall be
given within ten days of the date of the Special Mandatory Redemption Trigger by
first-class mail, postage prepaid, mailed not less than 15 nor more than 30 days
prior to the Redemption Date, to the Escrow Agent and to each Noteholder, at his
address appearing in the Security Register, and such notice shall state:
(1) that the Special Mandatory Redemption Trigger has occurred;
54
(2) the Redemption Date;
(3) the Redemption Price;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each 8 3/8% Note to be redeemed and that interest thereon will
cease to accrue on and after such date; and
(5) the place or places where each 8 3/8% Note is to be surrendered for
payment of the Redemption Price.
Any notice of redemption given pursuant to this Article Eleven may be
modified by the Company to conform with the applicable requirements of the
Depositary if any of the Securities subject to such notice are then represented
by one or more Global Securities.
SECTION 1110. No Mandatory Sinking Fund.
There will be no mandatory sinking fund payments for the 8 3/8% Notes,
except as provided in Section 1109.
SECTION 7. Amendments to Article Thirteen the Original Indenture.
(a) Section 1302 of the Original Indenture is amended in its
entirety with respect to the 8 3/8% Notes to read as follows:
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to the 8 3/8% Notes, (i) the Company shall be deemed to have been
discharged from its obligations hereunder as provided in this Section, (ii)
payment of the 8 3/8% Notes may not be accelerated because of an Event of
Default with respect thereto and (iii) the provisions of Articles Fourteen
through Sixteen shall cease to be effective with respect to the 8 3/8% Notes as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the 8 3/8% Notes and to have
satisfied all its other obligations under the 8 3/8% Notes and this Indenture
insofar as the 8 3/8% Notes are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following, which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of the 8 3/8% Notes to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
the 8 3/8% Notes when payments are due, (2) the Company's obligations with
respect to the 8 3/8% Notes under Sections 304, 305, 306, 1002 and 1003, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to the 8 3/8% Notes
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to the 8 3/8% Notes.
55
(b) Section 1303 of the Original Indenture is amended in its entirety
with respect to the 8 3/8% Notes to read as follows:
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to the 8 3/8% Notes, (i) the Company shall be released from its
obligations under Section 801(a)(3), Sections 1005 through 1017, inclusive, (ii)
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (4), clause (5) (with respect only to Subsidiary Guarantors
or Significant Subsidiaries), clause (6) (with respect only to Subsidiary
Guarantors or Significant Subsidiaries), clause (7), clause (8) or clause (9) of
Section 501 or because of the failure of the Company to comply with Section
801(a)(3) and (iii) the provisions of Articles Fourteen through Sixteen shall
cease to be effective with respect to the 8 3/8% Notes as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to the 8 3/8% Notes, 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 specified Section or Article
Fourteen, Fifteen or Sixteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article Fourteen, Fifteen or
Sixteen, or by reason of any reference in any such Section or Article to any
other provision herein or in any other document, but the remainder of this
Indenture and the 8 3/8% Notes shall be unaffected thereby.
SECTION 8. Amendments to Article Fourteen of the Original Indenture.
(a) Article Fourteen of the Original Indenture is superseded
with respect to the 8 3/8% Notes by the following provisions:
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Agreement to Subordinate.
The Company agrees, and each Noteholder by accepting an 8 3/8% Note
agrees, that the payment of the principal of, premium, if any, and interest on
the 8 3/8% Notes and any other payment obligation of the Company in respect of
the 8 3/8% Notes (including any obligation to purchase 8 3/8% Notes) is
subordinated in right of payment, to the extent and in the manner provided in
this Article Fourteen, to the prior payment in full of all Senior Indebtedness
of the Company, including the obligations of the Company under the Revolving
Credit Facility, and that the subordination is for the benefit of and shall be
enforceable directly by the holders of such Senior Indebtedness. The 8 3/8%
Notes shall in all respects rank pari passu with all other Senior Subordinated
Indebtedness of the Company and only Indebtedness of the Company that is Senior
Indebtedness of the Company shall rank senior to the 8 3/8% Notes in accordance
with the provisions set forth herein. All provisions of this Article Fourteen
shall be subject to Section 1412.
SECTION 1402. Liquidation, Dissolution, Bankruptcy.
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Upon any payment or distribution of the assets of the Company upon a
liquidation, dissolution or reorganization of or similar proceeding relating to
the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full in cash or cash equivalents of such Senior Indebtedness
before Noteholders shall be entitled to receive any payment; and
(2) until such Senior Indebtedness is paid in full in cash or cash
equivalents, any payment or distribution to which Noteholders would be entitled
but for this Article Fourteen shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Noteholders may receive
shares of stock and any debt securities that are subordinated to such Senior
Indebtedness to at least the same extent as the 8 3/8% Notes.
SECTION 1403. Default on Senior Indebtedness of the Company.
The Company shall not pay the principal of, premium, if any, or
interest on the 8 3/8% Notes or any other payment obligation in respect of the
8 3/8% Notes (including any obligation to purchase the 8 3/8% Notes) or make any
deposit pursuant to Article Thirteen and may not purchase, redeem or otherwise
retire any 8 3/8% Notes (collectively, "pay the 8 3/8% Notes") if either of the
following (a "Payment Default") occurs: (1) any Obligation on Designated Senior
Indebtedness of the Company is not paid in full when due; or (2) any other
default on Designated Senior Indebtedness of the Company occurs and the maturity
of such Designated Senior Indebtedness is accelerated in accordance with its
terms; unless, in either case, the Payment Default has been cured or waived and
any such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full in cash or cash equivalents; provided, however, that the
Company shall be entitled to pay the 8 3/8% Notes without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representatives of all Designated Senior Indebtedness with
respect to which the Payment Default has occurred and is continuing.
During the continuance of any default (other than a Payment Default)
with respect to any Designated Senior Indebtedness of the Company pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, the Company shall not pay the 8 3/8% Notes for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
and the Company of a written notice (a "Blockage Notice") of such default from
the Representative of such Designated Senior Indebtedness specifying an election
to effect a Payment Blockage Period and ending 179 days thereafter. The Payment
Blockage Period shall end earlier if such Payment Blockage Period is terminated:
(1) by written notice to the Trustee and the Company from the Person or Persons
who gave such Blockage Notice; (2) because the default giving rise to such
Blockage Notice is cured, waived or otherwise no longer continuing; or (3)
because such Designated Senior Indebtedness has been discharged or repaid in
full in cash or cash equivalents.
Notwithstanding the provisions described in the preceding paragraph,
unless the holders of such Designated Senior Indebtedness or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness, the
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Company shall be permitted to resume payments on the 8 3/8% Notes after the end
of such Payment Blockage Period. The 8 3/8% Notes shall not be subject to more
than one Payment Blockage Period in any consecutive 360-day period irrespective
of the number of defaults with respect to Designated Senior Indebtedness of the
Company during such period; provided, however, that in no event may the total
number of days during which any Payment Blockage Period or Periods is in effect
exceed 179 days in the aggregate during any consecutive 360-day period, and
there must be 181 days during any consecutive 360-day period during which no
Payment Blockage Period is in effect.
SECTION 1404. Acceleration of Payment of 8 3/8% Notes.
If payment of the 8 3/8% Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of
Designated Senior Indebtedness of the Company (or their Representatives) of the
acceleration.
SECTION 1405. When Distribution Must Be Paid Over; Reinstatement of Senior
Indebtedness.
If a distribution is made to Noteholders that because of this Article
Fourteen should not have been made to them, the Noteholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness of the
Company and pay it over to them as their interests may appear.
To the extent any payment of or distribution in respect of Senior
Indebtedness (whether by or on behalf of the Company as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment or distribution is recovered by, or paid over to, such receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person, the
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment had not occurred.
SECTION 1406. Subrogation.
After all Senior Indebtedness of the Company is paid in full and until
the 8 3/8% Notes are paid in full, Noteholders shall be subrogated to the rights
of holders of such Senior Indebtedness to receive distributions applicable to
such Senior Indebtedness. A distribution made under this Article Fourteen to
holders of such Senior Indebtedness which otherwise would have been made to
Noteholders is not, as between the Company and Noteholders, a payment by the
Company on such Senior Indebtedness.
SECTION 1407. Relative Rights.
This Article Fourteen defines the relative rights of Noteholders and
holders of Senior Indebtedness of the Company. Nothing in this Indenture shall:
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(1) impair, as between the Company and Noteholders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the 8 3/8% Notes in accordance with their terms; or
(2) prevent the Trustee or any Noteholder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Indebtedness
of the Company to receive distributions otherwise payable to Noteholders.
SECTION 1408. Subordination May Not Be Impaired by Company.
No right of any present or future holders of any Senior Indebtedness of
the Company to enforce subordination as provided in this Indenture will at any
time in any way be prejudiced or impaired by noncompliance by the Company with
the terms of this Indenture, regardless of any knowledge thereof that any such
holder of Senior Indebtedness may have or otherwise be charged with.
SECTION 1409. Rights of Trustee and Paying Agent; Rights of Holders of Senior
Indebtedness.
Notwithstanding Section 1403, the Trustee or Paying Agent shall
continue to make payments on the 8 3/8% Notes and shall not be charged with
knowledge of the existence of facts that under this Article Fourteen would
prohibit the making of any such payments unless, not less than two Business Days
prior to the date of such payment, a Trust Officer of the Trustee receives
notice satisfactory to it that such payments are prohibited by this Article
Fourteen. The Company, the Security Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Company shall be
entitled to give the notice; provided, however, that, if an issue of Senior
Indebtedness of the Company has a Representative, only the Representative shall
be entitled to give the notice.
The Trustee in its individual or any other capacity shall be entitled
to hold Senior Indebtedness of the Company with the same rights it would have if
it were not Trustee. The Security Registrar and the Paying Agent shall be
entitled to do the same with like rights. The Trustee shall be entitled to all
the rights set forth in this Article Fourteen with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in Article
Six shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article Fourteen shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
The holders of Senior Indebtedness may, at any time and from time to
time subject to the terms of such Senior Indebtedness, without the consent of or
notice to the Trustee or the Noteholders, without incurring responsibility to
the Noteholders and without impairing or releasing the subordination provided in
this Indenture or the obligations hereunder of the Noteholders to the holders of
Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness or any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding or
secured;
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(2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the Company
and any other Person.
SECTION 1410. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to
holders of Senior Indebtedness of the Company, such Person shall be entitled to
make such distribution or give such notice to their Representative (if any).
SECTION 1411. Article Fourteen Not to Prevent Events of Default or Limit Right
to Accelerate.
The failure to make a payment pursuant to the 8 3/8% Notes by reason of
any provision in this Article Fourteen shall not be construed as preventing the
occurrence of a Default. Nothing in this Article Fourteen shall have any effect
on the right of the Noteholders or the Trustee to accelerate the maturity of the
8 3/8% Notes.
SECTION 1412. Trust Moneys and Escrow Funds Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from either (i) money or the proceeds of U.S. Government Obligations held in
trust under Article Thirteen by the Trustee for the payment of principal of and
interest on the 8 3/8% Notes or (ii) any funds received by the Trustee or Paying
Agent from the Escrow Agent following the Special Mandatory Redemption Trigger
shall not be subordinated to the prior payment of any Senior Indebtedness of the
Company or subject to the restrictions set forth in this Article Fourteen, and
none of the Noteholders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 1413. Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article Fourteen, the
Trustee and the Noteholders shall be entitled to rely (1) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 1402 are pending, (2) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Noteholders or (3) upon the Representatives of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fourteen. In the event that the
Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article Fourteen,
the Trustee shall be entitled to request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
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Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article Fourteen, and, if such evidence is not
furnished, the Trustee shall be entitled to defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 601 and 603 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article
Fourteen.
SECTION 1414. Trustee to Effectuate Subordination.
Each Noteholder by accepting an 8 3/8% Note authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Fourteen and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 1415. Trustee Not Fiduciary for Holders of Senior Indebtedness of the
Company.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Noteholders or the
Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article Fourteen
or otherwise.
SECTION 1416. Reliance by Holders of Senior Indebtedness of the Company on
Subordination Provisions.
Each Noteholder by accepting an 8 3/8% Note acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness of the
Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the 8 3/8% Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
SECTION 9. Subsidiary Guaranties.
(a) The Original Indenture is amended with respect to the
8 3/8% Notes by adding Articles Fifteen and Sixteen as follows:
ARTICLE FIFTEEN
SUBSIDIARY GUARANTIES
SECTION 1501. Guaranties.
Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally, to each Holder and to the Trustee and its
successors and assigns (a) the full and punctual payment of principal of and
interest on the 8 3/8% Notes when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the
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Company under this Indenture and the 8 3/8% Notes and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under this Indenture and the 8 3/8% Notes (all the foregoing being
hereinafter collectively called the "Guarantied Obligations"). Each Subsidiary
Guarantor further agrees that the Guarantied Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under
this Article Fifteen notwithstanding any extension or renewal of any Guarantied
Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Guarantied Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the 8 3/8% Notes or the Guarantied Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the 8 3/8% Notes or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the 8 3/8%
Notes or any other agreement; (d) the release of any security held by any Holder
or the Trustee for the Guarantied Obligations or any of them; (e) the failure of
any Holder or the Trustee to exercise any right or remedy against any other
guarantor of the Guarantied Obligations; or (f) except as set forth in Section
1506, any change in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Guarantied Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner set forth
in Article Sixteen, subordinated and subject in right of payment to the prior
payment in full of the principal of and premium, if any, and interest on all
Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty
and each Subsidiary Guaranty is made subject to such provisions of this
Indenture.
Except as expressly set forth in Sections 1502 and 1506, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guarantied Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the 8 3/8% Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity, except for the payment in full of the Guarantied Obligations.
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Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Guarantied Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Guarantied Obligation when and as the same
shall become due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guarantied Obligation, each
Subsidiary Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of
such Guarantied Obligations, (2) accrued and unpaid interest on such Guarantied
Obligations (but only to the extent not prohibited by law) and (3) all other
monetary Guarantied Obligations of the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Guarantied Obligations until payment in
full of all Guarantied Obligations and all obligations to which the Guarantied
Obligations are subordinated as provided in Article Sixteen. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Guarantied
Obligations may be accelerated as provided in Article Five for the purposes of
such Subsidiary Guarantor's Subsidiary Guaranty herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Guarantied Obligations, and (y) in the event of any declaration of
acceleration of such Guarantied Obligations as provided in Article Five, such
Guarantied Obligations (whether or not due and payable) shall forthwith become
due and payable by such Subsidiary Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
SECTION 1502. Limitation on Liability.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guarantied Obligations with
respect to any Subsidiary Guarantor shall not exceed the maximum amount that can
be hereby guaranteed without rendering this Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 1503. Successors and Assigns.
This Article Fifteen shall be binding upon each Subsidiary Guarantor
and its successors and assigns and shall enure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the 8 3/8% Notes shall
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automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 1504. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article Fifteen
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article Fifteen at law, in
equity, by statute or otherwise.
SECTION 1505. Modification.
No modification, amendment or waiver of any provision of this Article
Fifteen, nor the consent to any departure by any Subsidiary Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 1506. Release of Subsidiary Guarantor.
Upon (1) the sale or other disposition (including by way of
consolidation or merger) of all of the Capital Stock of a Subsidiary Guarantor
(in each case other than a sale or disposition to the Company or an Affiliate of
the Company) and as permitted by this Indenture, (2) the liquidation and
dissolution of a Subsidiary Guarantor, (3) the exercise by the Company of its
option to effect Defeasance or Covenant Defeasance pursuant to Article Thirteen
or (4) the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary,
such Subsidiary Guarantor shall be deemed released from all obligations under
this Indenture and the 8 3/8% Notes without any further action required on the
part of the Trustee, the Company, such Subsidiary Guarantor or any Holder. At
the request of the Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
SECTION 1507 Contribution.
Each Subsidiary Guarantor that makes a payment under its Subsidiary
Guaranty shall be entitled upon payment in full of all Guarantied Obligations to
a contribution from each other Subsidiary Guarantor in an amount equal to such
other Subsidiary Guarantor's pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the time of such
payment determined in accordance with GAAP.
ARTICLE SIXTEEN
SUBORDINATION OF SUBSIDIARY GUARANTIES
SECTION 1601. Agreement to Subordinate.
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Each Subsidiary Guarantor agrees, and each Noteholder by accepting an
8 3/8% Note agrees, that the payment of such Subsidiary Guarantor's Subsidiary
Guaranty (including any amounts in respect of the principal of, premium, if any,
or interest on the 8 3/8% Notes and any other payment obligation in respect of
the 8 3/8% Notes, including any obligation of the Company to purchase 8 3/8%
Notes) is subordinated in right of payment, to the extent and in the manner
provided in this Article Sixteen, to the prior payment in full of all Senior
Indebtedness of such Subsidiary Guarantor, including such Subsidiary Guarantor's
Guarantee of Senior Indebtedness of the Company, and that the subordination is
for the benefit of and shall be enforceable directly by the holders of such
Senior Indebtedness. The Guarantied Obligations of a Subsidiary Guarantor shall
in all respects rank pari passu with all other Senior Subordinated Indebtedness
of such Subsidiary Guarantor and only Indebtedness of such Subsidiary Guarantor
that is Senior Indebtedness of such Subsidiary Guarantor shall rank senior to
the Guarantied Obligations of such Subsidiary Guarantor in accordance with the
provisions set forth herein. All provisions of this Article Sixteen shall be
subject to Section 1612.
SECTION 1602. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of any Subsidiary
Guarantor upon a liquidation, dissolution or reorganization of or similar
proceeding relating to such Subsidiary Guarantor or its property:
(1) holders of Senior Indebtedness of such Subsidiary Guarantor shall
be entitled to receive payment in full in cash or cash equivalents of such
Senior Indebtedness before Noteholders shall be entitled to receive any payment
pursuant to the Subsidiary Guaranty of such Subsidiary Guarantor; and
(2) until the Senior Indebtedness of such Subsidiary Guarantor is paid
in full in cash or cash equivalents, any payment or distribution to which
Noteholders would be entitled but for this Article Sixteen shall be made to
holders of such Senior Indebtedness as their interests may appear, except that
Noteholders may receive shares of stock and any debt securities of such
Subsidiary Guarantor that are subordinated to such Senior Indebtedness to at
least the same extent as its Subsidiary Guaranty.
SECTION 1603. Default on Senior Indebtedness of Subsidiary Guarantor.
No Subsidiary Guarantor shall make any payment under its Subsidiary
Guaranty, whether in respect of the principal of, premium, if any, or interest
on the 8 3/8% Notes or any other payment obligation in respect of the 8 3/8%
Notes (including any obligation of the Company to purchase 8 3/8% Notes) or make
any deposit pursuant to Article Thirteen and may not purchase, redeem or
otherwise retire or defease any 8 3/8% Notes or other Guarantied Obligations
(collectively, "pay its Subsidiary Guaranty") if either of the following (a
"Payment Default") occurs (1) any Obligation on Designated Senior Indebtedness
of such Subsidiary Guarantor is not paid in full when due; or (2) any other
default on Designated Senior Indebtedness of such Subsidiary Guarantor occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms; unless, in either case, the Payment Default has been
cured or waived and any such acceleration has been rescinded or such Designated
Senior Indebtedness has been paid in full in cash or cash equivalents; provided,
however, that any
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Subsidiary Guarantor shall be entitled to pay its Subsidiary Guaranty without
regard to the foregoing if such Subsidiary Guarantor and the Trustee receive
written notice approving such payment from the Representatives of all Designated
Senior Indebtedness with respect to which the Payment Default has occurred and
is continuing.
During the continuance of any default (other than a Payment Default)
with respect to any Designated Senior Indebtedness of such Subsidiary Guarantor
pursuant to which the maturity thereof may be accelerated without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, such Subsidiary Guarantor shall not
pay its Subsidiary Guaranty for a period (a "Payment Blockage Period")
commencing upon the receipt by the Trustee and such Subsidiary Guarantor of
written notice (a "Blockage Notice") of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter. The Payment Blockage Period
shall end earlier if such Payment Blockage Period is terminated: (1) by written
notice to the Trustee and such Subsidiary Guarantor from the Person or Persons
who gave such Blockage Notice; (2) because the default giving rise to such
Blockage Notice is cured, waived or otherwise no longer continuing; or (3)
because such Designated Senior Indebtedness has been discharged or repaid in
full in cash or cash equivalents.
Notwithstanding the provisions described in the preceding paragraph,
unless the holders of such Designated Senior Indebtedness giving such Payment
Notice or the Representative of such Designated Senior Indebtedness shall have
accelerated the maturity of such Designated Senior Indebtedness, any Subsidiary
Guarantor shall be permitted to resume payments pursuant to its Subsidiary
Guaranty after the end of such Payment Blockage Period. No Subsidiary Guarantor
shall be subject to more than one Blockage Period in any consecutive 360-day
period irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Subsidiary Guarantor during such period; provided, however,
that in no event may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any
consecutive 360-day period, and there must be 181 days during any consecutive
360-day period during which no Payment Blockage Period is in effect.
SECTION 1604. Demand for Payment.
If a demand for payment is made by the Trustee on a Subsidiary
Guarantor pursuant to Article Fifteen, the Trustee shall promptly notify the
holders of Designated Senior Indebtedness of such Subsidiary Guarantor (or their
Representatives) of such demand.
SECTION 1605. When Distribution Must Be Paid Over; Reinstatement of Senior
Indebtedness.
If a distribution is made to Noteholders that because of this Article
Sixteen should not have been made to them, the Noteholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness of the
applicable Subsidiary Guarantor and pay it over to them or their Representatives
as their interests may appear.
To the extent any payment of or distribution in respect of Senior
Indebtedness (whether by or on behalf of any Subsidiary Guarantor as proceeds of
security or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid
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to any receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then if such payment or distribution is recovered by,
or paid over to, such receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
SECTION 1606. Subrogation.
After all Senior Indebtedness of a Subsidiary Guarantor is paid in full
and until the 8 3/8% Notes are paid in full, Noteholders shall be subrogated to
the rights of holders of such Senior Indebtedness to receive distributions
applicable to Senior Indebtedness of such Subsidiary Guarantor. A distribution
made under this Article Sixteen to holders of such Senior Indebtedness which
otherwise would have been made to Noteholders is not, as between the relevant
Subsidiary Guarantor and Noteholders, a payment by such Subsidiary Guarantor on
such Senior Indebtedness.
SECTION 1607. Relative Rights.
This Article Sixteen defines the relative rights of Noteholders and
holders of Senior Indebtedness of a Subsidiary Guarantor. Nothing in this
Indenture shall:
(1) impair, as between a Subsidiary Guarantor and Noteholders, the
obligation of such Subsidiary Guarantor, which is absolute and unconditional, to
pay its Subsidiary Guaranty to the extent set forth in Article Fifteen; or
(2) prevent the Trustee or any Noteholder from exercising its available
remedies upon a default by such Subsidiary Guarantor under its Subsidiary
Guaranty, subject to the rights of holders of Senior Indebtedness of such
Subsidiary Guarantor to receive distributions otherwise payable to Noteholders.
SECTION 1608. Subordination May Not Be Impaired by Company.
No right of any present or future holders of any Senior Indebtedness of
any Subsidiary Guarantor to enforce subordination as provided in this Indenture
will at any time in any way be prejudiced or impaired by noncompliance by such
Subsidiary Guarantor with the terms of this Indenture, regardless of any
knowledge thereof that any such Holder of Senior Indebtedness may have or
otherwise be charged with.
SECTION 1609. Rights of Trustee and Paying Agent; Rights of Holders of Senior
Indebtedness.
Notwithstanding Section 1603, the Trustee or Paying Agent shall
continue to make payments on any Subsidiary Guaranty and shall not be charged
with knowledge of the existence of facts that under this Article Sixteen would
prohibit the making of any such payments unless, not less than two Business Days
prior to the date of such payment, a Trust Officer of the Trustee receives
written notice satisfactory to it that such payments are prohibited by this
Article Sixteen. The Company, the relevant Subsidiary Guarantor, the Security
Registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
of such Subsidiary Guarantor shall be entitled
67
to give the notice; provided, however, that, if an issue of Senior Indebtedness
of any Subsidiary Guarantor has a Representative, only the Representative shall
be entitled to give the notice.
The Trustee in its individual or any other capacity shall be entitled
to hold Senior Indebtedness of any Subsidiary Guarantor with the same rights it
would have if it were not the Trustee. The Security Registrar and the Paying
Agent may do the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article Sixteen with respect to any Senior Indebtedness
of any Subsidiary Guarantor which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in Article
Six shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article Sixteen shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
The holders of Senior Indebtedness may, at any time and from time to
time subject to the terms of such Senior Indebtedness, without the consent of or
notice to the Trustee or the Noteholders, without incurring responsibility to
the Noteholders and without impairing or releasing the subordination provided in
this Indenture or the obligations hereunder of the Noteholders to the holders of
Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness or any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding or
secured;
(2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against any
Subsidiary Guarantor and any other Person.
SECTION 1610. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to
holders of Senior Indebtedness of any Subsidiary Guarantor, such Person shall be
entitled to make such distribution or give such notice to their Representative
(if any).
SECTION 1611. Article Sixteen Not to Prevent Events of Default or Limit Right to
Demand Payment.
The failure to make a payment pursuant to a Subsidiary Guaranty by
reason of any provision in this Article Sixteen shall not be construed as
preventing the occurrence of a Default. Nothing in this Article Sixteen shall
have any effect on the right of the Noteholders or the Trustee to make a demand
for payment on any Subsidiary Guarantor pursuant to its Subsidiary Guaranty.
SECTION 1612. Trust Moneys and Escrow Funds Not Subordinated.
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Notwithstanding anything contained herein to the contrary, payments
from either (i) money or the proceeds of U.S. Government Obligations held in
trust under Article Thirteen by the Trustee for the payment of principal of and
interest on the 8 3/8% Notes or (ii) any funds received by the Trustee or Paying
Agent from the Escrow Agent following the Special Mandatory Redemption Date
shall not be subordinated to the prior payment of any Senior Indebtedness of any
Subsidiary Guarantor or subject to the restrictions set forth in this Article
Sixteen, and none of the Noteholders shall be obligated to pay over any such
amount to any Subsidiary Guarantor or any holder of Senior Indebtedness of any
Subsidiary Guarantor or any other creditor of any Subsidiary Guarantor.
SECTION 1613. Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article Sixteen, the
Trustee and the Noteholders shall be entitled to rely (1) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 1602 are pending, (2) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Noteholders or (3) upon the Representatives for the
holders of Senior Indebtedness of any Subsidiary Guarantor for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other indebtedness of
such Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Sixteen. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of any Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness of such Subsidiary Guarantor
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article Sixteen, and, if such evidence is not furnished, the
Trustee shall be entitled to defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 601 and 603 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article Sixteen.
SECTION 1614. Trustee to Effectuate Subordination.
Each Noteholder by accepting an 8 3/8% Note authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Sixteen and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 1615. Trustee Not Fiduciary for Holders of Senior Indebtedness of
Subsidiary Guarantor.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of any Subsidiary Guarantor and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to
Noteholders or the Company or any other Person, money or
69
assets to which any holders of such Senior Indebtedness shall be entitled by
virtue of this Article Sixteen or otherwise.
SECTION 1616. Reliance by Holders of Senior Indebtedness of Subsidiary
Guarantors on Subordination Provisions.
Each Noteholder by accepting an 8 3/8% Note acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness of any
Subsidiary Guarantor, whether such Senior Indebtedness was created or acquired
before or after the issuance of the 8 3/8% Notes, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
SECTION 10. Governing Law.
This First Supplemental Indenture and the 8 3/8% Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 11. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
SECTION 12. Supplemental Indenture Controls.
In the event there is any conflict or inconsistency between the
Original Indenture and this First Supplemental Indenture, the provisions of this
First Supplemental Indenture shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
NEWFIELD EXPLORATION COMPANY
By:
--------------------------------------------
Xxxxx X. Xxxxxxx
Vice President and Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Name:
Title:
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Exhibit A
[FORM OF THE FACE OF 8 3/8% NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE
HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
NEWFIELD EXPLORATION COMPANY
8 3/8% SENIOR SUBORDINATED NOTE DUE 2012
REGISTERED CUSIP No. 651290 AF5
No. ___ $___________
Newfield Exploration Company, a Delaware corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to Cede & Co., or its registered assigns,
the principal sum of ___________ United States Dollars ($________________) on
August 15, 2012.
Interest Payment Dates: February 15, and August 15, commencing
February 15, 2003.
Regular Record Dates: February 1 and August 1.
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Reference is hereby made to the further provisions of this 8 3/8% Note
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 8 3/8% Note to be
signed manually or by facsimile by its duly authorized officers under its
corporate seal.
NEWFIELD EXPLORATION COMPANY
By:
-----------------------------------
Name:
Title:
Attest:
------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Signatory
Date:
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[FORM OF THE REVERSE OF 8 3/8% NOTE]
NEWFIELD EXPLORATION COMPANY
8 3/8% SENIOR SUBORDINATED NOTE DUE 2012
1. Indenture; Limitations.
The Company issued the 8 3/8% Notes under the Subordinated Indenture
dated as of December 10, 2001 (the "Original Indenture"), as supplemented and
amended by the First Supplemental Indenture dated as of August 13, 2002 (the
Original Indenture as so supplemented and amended being hereinafter referred to
as the "Indenture"), between the Company and Wachovia Bank, National
Association, as trustee (the "Trustee") . Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the 8 3/8%
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act. The 8 3/8% Notes are subject to all
such terms, and Holders are referred to the Indenture and the Trust Indenture
Act for a statement of all such terms. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this 8 3/8% Note and
the terms of the Indenture, the terms of the Indenture shall control.
The 8 3/8% Notes are senior subordinated obligations of the Company and
the aggregate principal amount of the 8 3/8% Notes which may be issued,
executed, authenticated, delivered and outstanding is unlimited (subject to
Section 1 of the First Supplemental Indenture). The Company may, subject to
Section 1010 of the Indenture, issue Additional 8 3/8% Notes under the Indenture
in either a limited or an unlimited aggregate principal amount. This 8 3/8% Note
is one of the Original 8 3/8% Notes referred to in the Indenture issued in an
aggregate principal amount of $250,000,000. The Additional 8 3/8% Notes may be
issued as part of the same or a different series of Securities as the Original
8 3/8% Notes, but all such 8 3/8% Notes shall be treated as a single class under
the Indenture.
2. Principal and Interest.
The Company will pay the principal of this 8 3/8% Note on August 15,
2012.
The Company promises to pay interest on the principal amount of this
8 3/8% Note on each February 15 and August 15 (each an "Interest Payment Date"),
as set forth below, at the rate per annum shown above.
Interest will be payable semiannually (to the holders of record of the
8 3/8% Notes at the close of business on the February 1 or August 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
February 15, 2003.
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Interest on the 8 3/8% Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from August 13,
2002, provided that, if there is no existing Default in the payment of interest
and this 8 3/8% Note is authenticated between a Regular Record Date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the rate borne
by the 8 3/8% Notes plus 1% per annum, and it shall pay interest on overdue
installments of interest, to the extent lawful, at the rate borne by the 8 3/8%
Notes.
3. Method of Payment.
The Company will pay interest (except Defaulted Interest) on the
principal amount of the 8 3/8% Notes as provided above on each Interest Payment
Date to the persons who are Holders (as reflected in the Security Register at
the close of business on the February 1 and August 1 immediately preceding the
relevant Interest Payment Date), in each case, even if the 8 3/8% Note is
canceled on registration of transfer, registration of exchange, redemption or
repurchase after such record date and on or before the Interest Payment Date,
provided that, with respect to the payment of principal, the Company will make
payment to the Holder that surrenders this 8 3/8% Note to a Paying Agent on or
after its Maturity.
The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company, at its
option, may pay principal, premium, if any, and interest by its check payable in
such money. It may mail an interest check to a Holder's registered address (as
reflected in the Security Register). Payments in respect of 8 3/8% Notes
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. If a payment date is a date other
than a Business Day at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day and no interest shall accrue for
the intervening period.
4. Paying Agent and Security Registrar.
Initially, the Trustee will act as Paying Agent and Security Registrar
in relation to the 8 3/8% Notes. The Company may change any authenticating
agent, paying agent or Registrar without notice.
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5. Optional and Mandatory Redemption.
The 8 3/8% Notes are subject to both optional and mandatory redemption,
either as a whole or in some cases in part, at the times, under the
circumstances, upon the giving of prior notices to Holders and at the Redemption
Prices described in Article Eleven of the Indenture.
6. Escrow.
The underwriters of the Original 8 3/8% Notes have deposited the net
proceeds of the offering thereof with the Escrow Agent on the Issue Date. The
Escrow Agent will hold such funds pursuant to the Escrow Agreement, and, subject
to the conditions set forth in the Escrow Agreement, it will either disburse
such funds to the Company or disburse them to the Trustee or the Paying Agent
for application to the mandatory redemption of the Original 8 3/8% Notes
following the Special Mandatory Redemption Trigger.
7. Subordination.
The 8 3/8% Notes are subordinated to Senior Indebtedness of the
Company. To the extent provided in the Indenture, Senior Indebtedness of the
Company must be paid before the 8 3/8% Notes may be paid. The Company and each
Holder by accepting a 8 3/8% Note agrees to the subordination provisions
contained in the Indenture and authorize the Trustee to give it effect and
appoint the Trustee as attorney-in-fact for such purpose.
8. Repurchase upon a Change of Control.
Upon the occurrence of a Change of Control, each Holder of 8 3/8% Notes
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 in principal amount or an integral multiple thereof) of such Holder's
8 3/8% Notes pursuant to the Change of Control Offer as provided in, and subject
to the terms of, the Indenture at a purchase price in cash equal to 101% of the
principal amount of the 8 3/8% Notes repurchased, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date).
9. Denominations; Transfer; Exchange.
The 8 3/8% Notes are in registered form without coupons in
denominations of $1,000 of principal amount and multiples of $1,000 in excess
thereof. A Holder may register the transfer of or exchange 8 3/8% Notes in
accordance with the Indenture. The Security Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes or other governmental charges imposed on the transaction.
The Security Registrar need not register the transfer of or exchange any 8 3/8%
Notes selected or called for redemption (except in the case of a 8 3/8% Note
redeemed in part, the portion of the 8 3/8% Note not to be redeemed). Also, it
need not register the transfer or exchange of any 8 3/8% Notes for a period of
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15 days before the day of the mailing of a notice of redemption of 8 3/8% Notes
selected for redemption.
10. Persons Deemed Owners.
A Holder shall be treated as the owner of a 8 3/8% Note for all
purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its written request, unless an abandoned property
law provides otherwise. After that, Holders entitled to the money must look to
the Company for payment, and all liability of the Trustee and the Paying Agent
with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
Subject to certain conditions, if the Company deposits with the Trustee
money or U.S. Government Obligations sufficient to pay the then outstanding
principal of, premium, if any, and accrued interest on the 8 3/8% Notes to
redemption or Stated Maturity, as applicable, the Company and the Subsidiary
Guarantors, if any, may terminate some of or all of their obligations under the
Indenture and the 8 3/8% Notes, all as provided in Articles Four and Thirteen of
the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the 8 3/8% Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the 8 3/8% Notes then Outstanding, and any existing
Default or compliance with any provision may be waived with the consent of the
Holders of at least a majority in principal amount of the 8 3/8% Notes then
Outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the 8 3/8% Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any other change
that does not adversely affect the interests of any Holder in any material
respect.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset
Dispositions, suffer to exist restrictions on the ability of Restricted
Subsidiaries to make certain payments to the Company, engage in transactions
with Affiliates, suffer to exist or incur Liens, Incur layered Indebtedness or
merge, consolidate or transfer substantially all of their assets. The Company is
also required to cause each of its Restricted Subsidiaries that Guarantees or
secures other Indebtedness of the Company to, at the
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same time, Guarantee payment of the 8 3/8% Notes on the terms provided in
Article Fifteen of the Indenture. Within 120 days after the end of each fiscal
year, the Company shall deliver to the Trustee an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default under such
restrictive covenants.
15. Successor Persons.
Subject to certain exceptions, when a successor Person assumes all the
obligations of its predecessor under the 8 3/8% Notes and the Indenture, the
predecessor Person will be released from those obligations.
16. Defaults and Remedies.
The following are summaries of Events of Default under the Indenture
with respect to the 8 3/8% Notes:
(a) failure to pay any interest on the 8 3/8% Notes when due,
continued for 30 days;
(b) failure to pay principal of (or premium, if any, on) the 8
3/8% Notes when due;
(c) failure to comply with Article Eight of the Indenture;
(d) failure to perform any other covenant of the Company or
any Subsidiary Guarantor in the Indenture, continued for 90 days after
written notice to the Company from the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding 8 3/8%
Notes;
(e) a default by the Company or any Restricted Subsidiary
under any Indebtedness in an aggregate principal amount greater than
$10.0 million (other than Non-recourse Purchase Money Indebtedness)
that results in acceleration of the maturity of such Indebtedness, or
failure to pay any such Indebtedness at maturity within any applicable
grace period, if such Indebtedness is not repaid or such acceleration
is not rescinded within 10 days beyond the applicable grace period or
the acceleration as provided in the Indenture;
(f) one or more judgments or decrees by a court of competent
jurisdiction are entered against the Company, a Subsidiary Guarantor or
any Significant Subsidiary in an uninsured or unindemnified aggregate
amount outstanding at any time in excess of $10.0 million and such
judgments or decrees are not discharged, waived, stayed, satisfied or
bonded for a period of 60 consecutive days;
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(g) certain events of bankruptcy, insolvency or reorganization
with respect to the Company, a Subsidiary Guarantor or any Significant
Subsidiary; or
(h) a Subsidiary Guaranty ceases to be in full force and
effect (other than in accordance with the terms of such Subsidiary
Guaranty) for five days after notice as provided in the Indenture or a
Subsidiary Guarantor denies or disaffirms its obligations under its
Subsidiary Guaranty.
The Indenture provides that if an Event of Default (other than an Event
of Default described in clause (g) above) with respect to the 8 3/8% Notes at
the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding 8 3/8%
Notes by notice as provided in the Indenture may declare the principal amount of
the 8 3/8% Notes, together with accrued and unpaid interest thereon, to be due
and payable immediately. If an Event of Default described in clause (g) above
with respect to the 8 3/8% Notes at the time Outstanding shall occur, the
principal amount of all the 8 3/8% Notes, together with accrued and unpaid
interest thereon, will automatically, and without any action by the Trustee or
any Holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders of at least a
majority in aggregate principal amount of the Outstanding 8 3/8% Notes may,
under certain circumstances, rescind and annul such acceleration if all Events
of Default, other than the nonpayment of accelerated principal, have been cured
or waived as provided in the Indenture.
17. Trustee Dealings with the Company or the Guarantors.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Subsidiary Guarantors, if any, or the Company or their Affiliates and may
otherwise deal with the Subsidiary Guarantors, if any, or the Company or their
Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder,
other equity holder, officer, director, employee or controlling Person as such,
of the Company or any Subsidiary Guarantor shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the 8 3/8% Notes or
the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a 8 3/8% Note expressly
waives and releases all such liability. The waiver and release are a condition
of, and part of the consideration for the issuance of the 8 3/8% Notes.
19. Authentication.
This 8 3/8% Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this 8 3/8%
Note.
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20. 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).
21. Governing Law.
THIS 8 3/8% NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the 8 3/8% Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the 8 3/8% Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and of the Escrow Agreement. Requests may be made
to Newfield Exploration Company, 000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this 8 3/8% Note, fill in the form below:
I or we assign and transfer this 8 3/8% Note to ________________________________
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________________________ agent to transfer this
8 3/8% Note on the books of the Company. The agent may substitute another to
act for him.
Date:
------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
8 3/8% Note)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Registrar in addition
to, or in substitution for, STAMP, SEMP, or MSP, all in
accordance with the Securities Exchange Act of 1934, as
amended.)
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this 8 3/8% Note purchased by the Company pursuant
to Section 1014 (Asset Disposition) or Section 1016 (Change of Control) of the
Indenture, check the Box:
[ ] Section 1014 [ ] Section 1016
If you wish to have a portion of this 8 3/8% Note purchased by the
Company pursuant to Section 1014 or Section 1016 of the Indenture, state the
amount:
$
----------------
Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of this
8 3/8% Note)
Signature Guarantee:
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(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Registrar in addition
to, or in substitution for, STAMP, SEMP, or MSP, all in
accordance with the Securities Exchange Act of 1934, as
amended.)
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
_______________, ____, among [GUARANTOR] (the "New Subsidiary Guarantor"), a
subsidiary of Newfield Exploration Company (or its successor), a Delaware
corporation (the "Company"), NEWFIELD EXPLORATION COMPANY [, on behalf of itself
and the Subsidiary Guarantors (the "Existing Subsidiary Guarantors") under the
indenture referred to below,] and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association, as trustee under the indenture referred to below
(the "Trustee"),
WITNESSETH:
WHEREAS the Company [and the Existing Subsidiary Guarantors] has
heretofore executed and delivered to the Trustee an Indenture dated as of
December 10, 2001 (such Indenture, as amended or supplemented to date, including
by the First Supplemental Indenture dated as of August 13, 2002, between the
Company and the Trustee, is hereinafter called the "Indenture"), providing for
the initial issuance of an aggregate principal amount of $250,000,000 of 8 3/8%
Senior Subordinated Notes due 2012 (the "Securities");
WHEREAS Section 1017 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally Guarantee all the Company's
obligations under the Securities pursuant to a Subsidiary Guaranty on the terms
and conditions set forth herein; and
WHEREAS pursuant to Section 901 of the Indenture, the Trustee, the
Company [and the Existing Subsidiary Guarantors] are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company, [the Existing Subsidiary Guarantors] and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. Agreement to Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to unconditionally
Guarantee the Company's obligations under the Securities on the terms and
subject to the conditions set forth in Article Fifteen of the Indenture and to
be bound by all other applicable provisions of the Indenture.
B-1
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
By:
-----------------------------------------
Name:
Title:
NEWFIELD EXPLORATION COMPANY, [on behalf of itself
and the Existing Subsidiary Guarantors,]
By:
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Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Trustee,
By:
-----------------------------------------
Name:
Title:
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