EXHIBIT 10.105
INDENTURE OF TRUST
Dated as of November 16, 1995
READING & XXXXX DRILLING CO.
- and -
READING & XXXXX EXPLORATION CO.,
as Joint and Several Borrowers
- and -
WILMINGTON TRUST COMPANY,
as Indenture Trustee
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TABLE OF CONTENTS
Page
INDENTURE OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS OF THE BORROWER . . . . . . . . . . . . . . . . . . . . . . . .
GRANTING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . .
Section 101 Definitions . . . . . . . . . . . . . . . . . . . . . . . . .
Section 102 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 103 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . .
Section 104 Effect of Headings; Table of Contents . . . . . . . . . . . .
Section 105 Severability Clause; Further Assurances . . . . . . . . . . .
Section 106 Governing Law; Jurisdiction . . . . . . . . . . . . . . . . .
Section 107 Appointment of Process Agent . . . . . . . . . . . . . . . .
Section 108 Counterparts . . . . . . . . . . . . . . . . . . . . . . . .
Section 109 Survival . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 110 No Transfer in Violation of Shipping Act . . . . . . . . . .
Section 111 Monies of Indenture Trustee
Received by Borrower . . . . . . . . . . . . . . . . . . . . . . . . .
Section 112 Binding Effect . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER . . . . .
Section 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Organization and Existence . . . . . . . . . . . . . . . . . . . .
(b) Power and Authority . . . . . . . . . . . . . . . . . . . . . . .
(c) Due Authorization, Execution and Enforceability . . . . . . . . .
(d) No Violations . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Liens and Security Interests . . . . . . . . . . . . . . . . . .
(f) Notices of Defaults . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 3
REMEDIES UPON AN EVENT OF DEFAULT . . . . . . . . . . . . . . . .
Section 301 Remedies . . . . . . . . . . . . . . . . . . . . . . . . .
Section 302 Suits for Enforcement by Indenture Trustee . . . . . . . .
Section 303 Indenture Trustee's Enforcement of Claims . . . . . . . . .
Section 304 Application of Monies Collected After Default . . . . . . .
Section 305 Rights and Remedies Cumulative . . . . . . . . . . . . . .
Section 306 Delay or Omission Not Waiver . . . . . . . . . . . . . . .
Section 307 Discontinuance of Enforcement Proceedings . . . . . . . . .
Section 308 Control by the Majority Lenders . . . . . . . . . . . . . .
Section 309 Undertaking for Costs . . . . . . . . . . . . . . . . . . .
Section 310 Waiver of Demand, etc . . . . . . . . . . . . . . . . . . .
ARTICLE 4
THE INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . . . . . .
Section 401 Certain Duties and Liabilities . . . . . . . . . . . . . .
Section 402 Certain Rights of Indenture Trustee . . . . . . . . . . . .
Section 403 Not Responsible for Recitals . . . . . . . . . . . . . . .
Section 404 Money Held in Trust . . . . . . . . . . . . . . . . . . . .
Section 405 Compensation, Reimbursement and Indemnification . . . . . .
Section 406 Corporate Indenture Trustee Required; Eligibility . . . . .
Section 407 Disqualification, Removal or
Resignation of the Indenture Trustee;
Successor Indenture Trustees . . . . . . . . . . . . . . . . . . . .
Section 408 Co-trustees and Separate Indenture Trustees . . . . . . . .
ARTICLE 5
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . .
Section 501 General . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 502 Survival of Certain Obligations . . . . . . . . . . . . . .
ARTICLE 6
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . .
Section 601 Waivers and Supplemental Indentures With
Consent of Lenders . . . . . . . . . . . . . . . . . . . . . . . . .
Section 602 Execution of Supplemental Indentures . . . . . . . . . . .
Section 603 Effect of Supplemental Indentures . . . . . . . . . . . . .
ARTICLE 7
INSTRUCTIONS OF THE AGENT OR MAJORITY LENDERS . . . . . . . . . .
Section 701 Instructions of the Agent or Majority Lenders. . . . . . .
ARTICLE 8
LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . .
Section 801 Limitation of Liability of Wilmington Trust Company. . . .
INDENTURE OF TRUST
THIS INDENTURE OF TRUST (this "Indenture") dated as of November 16,
1995, among (i) READING & XXXXX DRILLING CO. ("R&B Drilling") and READING
& XXXXX EXPLORATION CO. ("R&B Exploration"), each an Oklahoma corporation,
as joint and several borrowers (collectively, the "Borrowers"), and (ii)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity but solely as indenture trustee (the "Indenture
Trustee").
RECITALS OF THE BORROWERS
A. The Borrowers have entered into a Credit Facility Agreement,
dated as of November 16, 1995 (the "Credit Agreement"), with the Lenders
(as defined in the Credit Agreement), Christiania Bank og Kreditkasse,
acting through its New York branch, as agent for the Lenders (the "Agent")
and Reading & Xxxxx Corporation, as guarantor, pursuant to which the
Lenders have agreed to make available to the Borrowers (i) a reducing
revolving credit facility (the "Revolving Credit Facility") in the
original principal amount of Forty-Five Million United States Dollars
(US$45,000,000.00) evidenced by a secured promissory note of the Borrowers
(the "Note") and (ii) a Standby Letter of Credit Facility (the "Standby
Letter of Credit Facility and together with the Revolving Credit Facility,
the "Credit Facility") in an amount not to exceed Ten Million Dollars
(U.S. $10,000,000.00).
B. Pursuant to the Credit Agreement, (i) R&B Drilling is required
to execute and deliver a first preferred mortgage on the U.S. documented
semi-submersible drilling unit, XXXX XXXXX and (ii) R&B Exploration is
required to execute and deliver a first preferred mortgage (together with
the first preferred mortgage on the XXXX XXXXX, collectively the
"Mortgages") on the U.S. documented xxxx-up drilling unit, X.X. XXXXXXX
(together with the XXXX XXXXX, collectively, the "Vessels"). Certain of
the Lenders are not citizens of the United States of America within the
meaning of Section 2 of the Shipping Act, 1916, as amended, and are
therefore ineligible to be mortgagees of the Vessels, and the Lenders have
requested the Indenture Trustee to hold, pursuant to the terms of this
Indenture, the Mortgages.
C. To secure their obligations under the Credit Agreement and the
Note, the Borrowers have duly authorized the execution and delivery of
this Indenture.
D. All things have been done which are necessary to constitute this
Indenture a valid security agreement and contract for the security of the
obligations of the Borrowers under the Credit Facility and the Note, in
accordance with the terms of the Credit Agreement, the Note and this
Indenture.
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that,
To secure the payment of the Advances (as defined in the Credit
Agreement), the Unpaid Drawings (as defined in the Credit Agreement), and
interest thereon and all other Indebtedness (as defined below) and the
performance of the covenants therein and herein contained, and in
consideration of the premises and of the Lenders' making the Credit
Facility available to the Borrowers, the Borrowers by these presents do
grant, sell, convey, assign, transfer, pledge, set over and confirm unto
the Indenture Trustee for the benefit of the Lenders, continuing security
interests in all of their right, title and interest in and all benefits
in, under and to all of the following, but as security only for the
payment of the Indebtedness:
1. The U.S. documented vessel XXXX XXXXX, as granted by a first
preferred mortgage on the XXXX XXXXX by R&B Drilling;
2. The U.S. documented vessel X.X. XXXXXXX, as granted by a first
preferred mortgage on the X.X. XXXXXXX by R&B Exploration; and
3. Proceeds of the foregoing.
The Indenture Trustee shall hold the Mortgages as collateral security
for the Indebtedness, subject to the terms of this Indenture.
AND IT IS HEREBY COVENANTED AND DECLARED that the security interests
granted above are to be held and applied by the Indenture Trustee, subject
to the further covenants, conditions and trusts herein set forth, and the
Borrowers do hereby covenant and agree to and with the Indenture Trustee,
for the benefit of the Lenders as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
(a) For all purposes of this Indenture, except as otherwise
expressly provided herein or unless the context otherwise requires, in
addition to the words and expressions defined in the recitals hereto, the
following terms shall have the following meanings:
"Actual Knowledge" has the meaning specified in Section 401(h).
"Business Day" shall have the meaning ascribed thereto in the Credit
Agreement.
"Dollars", "dollars" or "$" means lawful and freely transferable
currency of the United States.
"Default Rate" shall have the meaning ascribed thereto in the Credit
Agreement.
"Event of Default" has the meaning ascribed thereto in the Credit
Agreement.
"Indebtedness" means the Advances, the Unpaid Drawings and all
interest thereon (and interest on any unpaid interest thereon) and on any
other sums of money on which interest is stated in the Credit Agreement to
be payable), all expenses, claims, liabilities, losses, costs, duties,
fees and all other sums of money from time to time owing under the Credit
Agreement and the Security Documents.
"Instructions" has the meaning set forth in Section 701.
"MARAD" means the United States Department of Transportation, Maritime
Administration.
"Officer's Certificate" means (i) when used with respect to a
Borrower, a certificate signed by the president, the chief executive
officer, any vice president, the secretary, any assistant secretary, the
treasurer or any assistant treasurer of such Borrower and (ii) when used
with respect to the Indenture Trustee, a certificate signed by a
Responsible Officer of the Indenture Trustee.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer", when used with respect to the Indenture
Trustee, means any officer with direct responsibility for the
administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the
particular subject. "Responsible Officer", when used with respect to a
Borrower, means the president, any vice president, the secretary, any
assistant secretary, the treasurer or any assistant treasurer of such
Borrower or any other officer or assistant officer of such Borrower
customarily performing functions similar to those performed by any of the
above-designated officers.
"Security Documents" shall have the meaning ascribed thereto in the
Credit Agreement.
"Supplemental Indenture" means any indenture supplemental to this
Indenture entered into pursuant to Article 6.
"United States" means the United States of America.
(b) For purposes of this Indenture, unless otherwise expressly
provided or unless the context otherwise, requires, all references herein
to Articles, Sections or other subdivisions, unless otherwise specified,
refer to the corresponding Articles, Sections and other subdivisions of
this Indenture, and the terms "hereof, "herein", hereby" hereafter" and
"herewith" refer to this Indenture.
(c) The terms defined in this Article include the plural as well as
the singular.
(d) All other terms used in this Indenture and not defined in this
Indenture which are defined by reference herein to the Credit Agreement or
other instruments, have the meanings assigned to them in the Credit
Agreement or such other instruments.
(e) All agreements referred to in this Article I and in the Recitals
of this Indenture mean such agreements as originally executed or, if duly
amended or supplemented, as so amended or supplemented.
Section 102. Notices.
(a) All notices or other communications required or permitted
to be made hereunder to the Borrowers, the Indenture Trustee, the Agent or
the Lenders shall be sufficiently given if in writing and made or
delivered by hand or by certified or registered mail, postage prepaid, by
telex or telecopy, addressed to the particular parties as provided below,
or to such other addresses as such parties may hereafter specify by a
written notice to such other parties (and with respect to any notice or
communication to the Indenture Trustee, with a copy to the Agent):
Borrowers: READING & XXXXX CORPORATION
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telefax: (000) 000-0000
Attention: Chief Financial Officer
Indenture Trustee: WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telefax: (000) 000-0000
Attention: Corporate Trust Division
With a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Xxxxxxxx, Xxxxxx & Finger
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Notices to the Agent shall be addressed to:
CHRISTIANIA BANK OG KREDITKASSE,
New York Branch
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telefax: (000) 000-0000
Attention: Loan Administration
Notices to the Lenders shall be addressed as provided on Schedule 1 to the
Credit Agreement.
Section 103. Waiver of Notice.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice.
Section 104. Effect of Headings; Table of Contents.
The table of contents, the titles of the Articles and the headings of
the Sections and paragraphs are not a part of this Indenture and shall not
be deemed to affect the meaning or construction of any of its provisions.
Section 105. Severability Clause; Further Assurances.
In case any provision of this Indenture or any other Security Document
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Indenture or any other
Security Document shall not in any way be affected or impaired thereby. In
case this Indenture or any other Security Document, or any provision
hereof or thereof, shall be deemed invalid, illegal or unenforceable, in
whole or in part, by reason of any present or future law or any decision
of any court having jurisdiction, or if the documents at any time held by
the Indenture Trustee shall be deemed by the Indenture Trustee in the
reasonable exercise of its duties to be insufficient for any reason to
implement the rights and powers granted to the Indenture Trustee herein or
any other Security Document, then, from time to time on demand of the
Indenture Trustee, the Borrowers will do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, such
other and further assurances and documents as in the opinion of the
Indenture Trustee may reasonably be required to create or confirm the
security interests purported to be created by the Granting Clause hereof
or to perfect the Indenture Trustee's security interest therein, or
otherwise to obtain or maintain the full benefits of this Indenture and
the Mortgages.
Section 106. Governing Law; Jurisdiction.
This Indenture shall be deemed to be a contract made under the
substantive laws of the State of New York and for all purposes shall be
construed in accordance with the internal laws of said State, without
reference to principles of conflicts of law. This Indenture may be
enforced in the federal or state courts in the State of New York or any
other court having jurisdiction. Each of the Borrowers hereby irrevocably
submits itself to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and the courts of the
State of New York located in the City and County of New York for such
purpose. In addition thereto, each of the Borrowers irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought
in any such court or any claim that any such proceeding brought in any
such court has been brought in an inconvenient forum.
Section 107. Appointment of Process Agent.
Each of the Borrowers hereby appoints Prentice Hall Corporation, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-0000 as its agent to accept service
of process in any proceeding on its behalf in the State of New York and
acknowledges that the purpose of this provision is to provide that service
upon such firm at its offices in Albany, New York shall have the same
effect as if the respective Borrower had been personally served in the
State of New York.
Section 108. Counterparts.
This 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 109. Survival.
All representations, warranties, covenants and agreements herein
contained or made in writing in connection with any Security Documents
shall survive the execution of this Indenture and shall continue in full
force and effect until the Indebtedness secured hereby or thereby shall
have been paid in full, and the same shall bind and inure to the benefit
of the respective successors and assigns of the Borrowers and the
Indenture Trustee.
Section 110. No Transfer in Violation of Shipping Act.
Notwithstanding any other provision herein to the contrary, except to
the extent permitted by law, no sale, transfer or other disposition of
either of the Vessels, or any interest therein, may be made to any person
not a citizen of the United States within the meaning of Section 2 of the
Shipping Act, 1916, as amended, without the approval of the Secretary of
Transportation of the United States or pursuant to an exemption therefrom.
Section 111. Monies of Indenture Trustee Received by Borrowers.
Any monies which may from time to time be received by either Borrower
which should have been paid to the Indenture Trustee hereunder shall be so
received in trust for the Indenture Trustee, shall not be commingled with
other funds of such Borrower and shall promptly be remitted to the
Indenture Trustee.
Section 112. Binding Effect.
All the covenants, promises, stipulations and agreements of each of
the Borrowers in this Indenture shall bind each of the Borrowers and their
respective successors and assigns, and shall inure to the benefit of the
Indenture Trustee and its successors and assigns, whether so expressed or
not. This Indenture is for the sole benefit of the Borrowers, the
Indenture Trustee and the Lenders and their respective successors and
assigns, and no other party shall have any right hereunder.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS
Each of the Borrowers represents and warrants to the Indenture Trustee
as of the date hereof and covenants with the Indenture Trustee that:
Section 201.
(a) Organization and Existence. Each of the Borrowers was duly
organized and is now validly existing as a corporation under the laws of
the State of Oklahoma with power and authority to conduct its business as
the same is presently being conducted. Each of the Borrowers shall
maintain such existence so long as this Indenture remains in effect.
(b) Power and Authority. Each of the Borrowers had and has legal
power and authority to enter into and carry out the terms of this
Indenture.
(c) Due Authorization, Execution and Enforceability. This Indenture
has been duly authorized by all necessary corporate action on the part of
each of the Borrowers, has been duly executed and delivered by each of the
Borrowers and constitutes, in accordance with its terms, the legal, valid
and binding agreements enforceable against each of the respective
Borrowers, except to the extent limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws of general
application relating to or affecting the enforcement of creditors' rights
as from time to time in effect and general equitable principles.
(d) No Violations. The consummation of the transactions contemplated
by, and compliance by each of the Borrowers with all the terms and
provisions of, this Indenture do not and will not violate any provisions
of the Certificate of Incorporation or Bylaws of either of the Borrowers,
and will not result in a breach of the terms and provisions of, or
constitute a default under, any agreement or undertaking by either of the
Borrowers, or of which it or any of its property is bound, or any order of
any court or administrative agency entered in any proceedings to which
either of the Borrowers is or has been a party or violate any applicable
statute, rule or regulation.
(e) Liens and Security Interests.
(1) The security interest granted by this Indenture
constitutes, a valid perfected assignment of and security interest in the
properties assigned hereby having a priority over any other security
interests in such property.
(2) Except pursuant to this Indenture (or as permitted by this
Indenture) or the Mortgages (or as permitted by the Mortgages), neither
Borrower has assigned, pledged or otherwise granted a security interest in
or lien on, and shall not assign, pledge or otherwise grant a security
interest in or lien on, the whole or any part of, any rights assigned by
the Indenture or the Mortgages.
(f) Notices of Defaults. Upon the occurrence of any Event of
Default, the Borrowers shall promptly notify the Indenture Trustee, the
Agent and the Lenders by telecopy, confirmed by letter, unless such Event
of Default shall have been cured.
ARTICLE 3
REMEDIES UPON AN EVENT OF DEFAULT
Section 301. Remedies.
If an Event of Default shall have occurred and be continuing, the
Indenture Trustee shall be entitled to, and shall upon receipt of written
Instructions of the Agent, without further notice or demand, enforce and
exercise all or any of its rights and powers as a mortgagee under the
respective Mortgages at law, in equity or in admiralty.
Section 302. Suits for Enforcement by Indenture Trustee.
Subject to the provisions of Section 308, if an Event of Default shall
occur and be continuing and the Indenture Trustee has Actual Knowledge,
the Indenture Trustee may in its discretion proceed to protect its rights
and the rights of the Lenders by such appropriate judicial proceedings as
the Indenture Trustee shall deem most effectual to protect any such
rights, or to protect any other proper right, power or remedy then
available to the Indenture Trustee under the Mortgages, provided that the
Indenture Trustee shall immediately thereafter notify the Agent and the
Lenders by telecopier of any action taken or proposed to be taken
hereunder and shall thereafter act only in accordance with the written
Instructions of the Agent or the Majority Lenders or either thereof.
Section 303. Indenture Trustee's Enforcement of Claims.
All rights of action and claims under this Indenture may be prosecuted
and enforced by the Indenture Trustee in a proceeding brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents or
counsel, be for the benefit of the Lenders.
Section 304. Application of Monies Collected After Default.
Any monies collected by the Indenture Trustee pursuant to any
enforcement of any of its rights hereunder or under any other Security
Document on account of the occurrence of an Event of Default shall be
applied as follows:
First: to the payment or reimbursement of all the
reasonable costs incurred or made in the exercise,
protection or pursuance by the Indenture Trustee of
its rights or remedies including, but not limited
to, the expenses of any sale or of any taking,
attorneys' fees and court costs, together with
interest thereon at the Default Rate and to provide
adequate indemnity to the Indenture Trustee against
security interests, liens, charges, encumbrances or
rights claiming priority over or equal to the
security interest or liens held under this
Indenture;
Second: to the payment of interest and fees owing in respect
of the Credit Facility, including all fees owing
pursuant to Clause 17 thereof;
Third: to the repayment of principal owing in respect of
the Advances or Unpaid Drawings;
Fourth: to other amounts due under the Credit Agreement;
Fifth: the surplus (if any) shall be paid to the Borrowers
or to whomsoever else may be entitled thereto.
Section 305. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Indenture
Trustee, the Agent or any of the Lenders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder, or under the other Security Documents or now or
hereafter existing at law, in equity, in admiralty, by statute or
otherwise. The assertion or employment of any right or remedy hereunder or
otherwise shall not prevent the concurrent or subsequent assertion or
employment of another right or remedy hereunder or otherwise.
Section 306. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee, the Agent or of any of
the Lenders to exercise any right or remedy accruing upon any Event of
Default nor any course of dealings among the Indenture Trustee, the Agent,
the Lenders and the Borrowers shall impair any such right or remedy or
constitute a waiver of any Event of Default or an acquiescence therein nor
shall any single exercise or partial exercise of any such right or remedy
preclude any other exercise thereof or any exercise of any other or
further right or remedy; nor shall the acceptance by the Indenture Trustee
of any security or any payment of any part of the Credit Facility maturing
after any Event of Default or of any payment on account of any past
default be construed to be a waiver of any right to take advantage of any
future Event of Default or of any past Event of Default not completely
cured thereby. To the extent permitted by law, every right or remedy
given by this Indenture or any other Security Document or by law to the
Indenture Trustee, the Agent or any of the Lenders may be exercised from
time to time, and as often and in such order as may be deemed expedient,
by the Indenture Trustee, the Agent or the Lenders, as the case may be.
Section 307. Discontinuance of Enforcement Proceedings.
In case the Indenture Trustee shall have proceeded to enforce any
right, power or remedy under this Indenture or under either Mortgage and
such proceeding shall have been discontinued or abandoned for any reason
or shall have been adversely determined to the Indenture Trustee, then,
and in every such case, the Borrowers and the Indenture Trustee shall be
restored to their former positions and rights hereunder with respect to
the property subject or intended to be subject to this Indenture or either
Mortgage, as the case may be, and all rights, remedies and powers of the
Indenture Trustee shall continue as if no such proceedings had been taken.
Section 308. Control by the Majority Lenders.
Subject to (i) the provisions of Section 309 and (ii) the requirements
of Sections 9 and 37 of the Shipping Act, 1916, as amended, the Agent or
the Majority Lenders shall have the right by written Instructions to the
Indenture Trustee, to direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee under this
Indenture or either Mortgage or exercising any trust or power conferred on
the Indenture Trustee herein or therein, and upon receipt of such written
Instructions, the Indenture Trustee, subject to the provisions of Article
4, shall take the actions specified in such written Instructions, provided
that such written instructions shall not be in conflict with any rule of
law or with this Indenture or expose the Indenture Trustee to personal
liability.
Section 309. Undertaking for Costs.
The parties to this Indenture agree, and the Lenders by making the
Credit Facility available shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken or omitted by it as Indenture Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Indenture
Trustee, or to any suit instituted by the Lenders, unless otherwise
required by law.
Section 310. Waiver of Demand, etc.
Each Borrower hereby expressly waives demand and presentment for
payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, bringing of suit, and diligence in taking any action to collect
amounts called for under this Indenture, the other Security Documents or
the Credit Agreement at any time in connection herewith and therewith.
ARTICLE 4
THE INDENTURE TRUSTEE
Section 401. Certain Duties and Liabilities.
(a) The Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee.
(b) Without limiting the provisions of paragraph (a) of this Section
401 or the provisions of Section 308, in any case where the terms of this
Indenture or either Mortgage vest in the Indenture Trustee non-mandatory,
discretionary authority to take any action or give any consent or approval
upon the request of either of the Borrowers, the Agent, any of the Lenders
or otherwise, the Indenture Trustee shall be required, first to give
notice of such proposed action, approval or consent to the Agent, and upon
receipt of written Instructions of the Agent, the Indenture Trustee shall
act with respect to such action, approval or consent only in accordance
with such written Instructions.
(c) In case an Event of Default shall have occurred and be
continuing, the Indenture Trustee shall (except as otherwise provided in
Section 308) exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(d) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own gross negligence or its own
willful misconduct or that of its employees, agents, officers and
attorneys.
(e) Save for the provisions of paragraph (d) hereof, the Indenture
Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in accordance with Instructions of the Agent or the
Majority Lenders relating to the exercise of any trust, right, remedy or
power conferred upon the Indenture Trustee under this Indenture or either
Mortgage, or exercisable by it hereunder or thereunder.
(f) None of the provisions of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or by special
agreement of the Agent or the Majority Lenders.
(g) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to the
provisions of this Section.
(h) The Indenture Trustee shall not be deemed to have knowledge
("Actual Knowledge") of the existence of an Event of Default unless the
Indenture Trustee shall have received telecopied or other written notice
of such Event of Default from the Agent or Majority Lenders, or a
Responsible Officer in the Corporate Trust Office of the Indenture Trustee
shall have actual knowledge of such Event of Default.
(i) The Indenture Trustee shall promptly, upon receiving Actual
Knowledge of an Event of Default, inform the Agent and the Lenders by
telex or telecopy of such Event of Default.
(j) None of the provisions of this Indenture shall require the
Indenture Trustee to review or hold policies of insurance or to make any
claims or take any other action with respect to such insurance unless
specifically instructed to do so by the Agent.
Section 402. Certain Rights of Indenture Trustee.
Except as otherwise provided in Section 401:
(a) The Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any written statement, instrument, notice,
request, instruction, direction or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) The Indenture Trustee may consult with counsel and the written
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in reliance thereon and in compliance therewith, absent bad
faith, negligence or willful misconduct on the part of the Indenture
Trustee;
(c) The Indenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request
or direction of the Agent or the Majority Lenders pursuant to this
Indenture, unless the Agent or the Majority Lenders shall have offered to
the Indenture Trustee reasonable security or indemnity against the costs
and expenses which might be incurred by it in compliance with such request
or direction;
(d) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any statement,
instrument, notice, request, direction or other paper or document referred
to in paragraph (a) of this Section;
(e) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee shall not be responsible for
the negligence of any attorney or agent appointed by the Indenture Trustee
with due care; and
(f) Should the Indenture Trustee receive written Instructions from
the Agent or the Majority Lenders which the Indenture Trustee, in its sole
opinion, believes to be conflicting Instructions, the Indenture Trustee
shall have no duty to act thereon, but if indemnified to its satisfaction
for any costs, expenses or liabilities it may incur, it shall seek
instructions concerning its responsibilities under this Indenture with
respect to such conflicting Instructions from any court of competent
jurisdiction.
Section 403. Not Responsible for Recitals.
The recitals contained herein shall be taken as the statements of the
Borrowers, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representations as to the
validity or sufficiency of this Indenture or either Mortgage.
Section 404. Money Held in Trust.
Any money held by the Indenture Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Indenture Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Borrowers.
Any payments made by the Indenture Trustee under this Indenture shall be
made only from monies held by it in trust hereunder.
Section 405. Compensation, Reimbursement and Indemnification.
The Borrowers jointly and severally agree, subject to the provisions
of Article 5:
(a) To pay to the Indenture Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited to any provision of law in regard to the compensation
of a trustee of an express trust);
(b) To reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of this Indenture
(including, without limitation, reasonable compensation and expenses and
disbursements of its agents and counsel and expenses incurred in enforcing
its rights or remedies under any Security Document), except any such
expense, disbursement or advance as may be attributable to its gross
negligence or willful misconduct; and
(c) To indemnify the Indenture Trustee, its directors, officers,
employees and agents for, and to hold it and them harmless against, any
and all claims, losses, liabilities or expenses of any kind (including
attorneys' fees) incurred without gross negligence or willful misconduct
on its or their part and arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself or themselves against any claim of liability
in the premises.
(d) That to secure the obligations of the Borrowers under this
Section 405, the Indenture Trustee shall have a lien prior to the rights
of the Lenders on all money or property held or collected by the Indenture
Trustee pursuant to this Indenture.
Section 406. Corporate Indenture Trustee Required; Eligibility.
There shall at all times be a Indenture Trustee hereunder which shall
be a bank or trust company which (i) is organized as a corporation or
banking association, and is doing business under the laws of the United
States or any State thereof, (ii) is authorized under such laws to
exercise corporate trust powers, (iii) is a citizen of the United States
within the meaning of Section 2 of the Shipping Act, 1916, as amended,
(iv) is subject to supervision or examination by federal or state
authority, (v) has a combined capital and surplus (as set forth in its
most recent published report of condition) of at least $50,000,000 and
(vi) is a trustee approved by the Secretary of Transportation pursuant to
Section 9 and, if applicable, Section 37 of the Shipping Act, 1916, as
amended, and Chapter 313 of Title 46 of the United States Code. The
Indenture Trustee hereby represents and warrants that on the date hereof
it complies with the requirements of the foregoing sentence. If at any
time the Indenture Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 407. Disqualification, Removal or Resignation of the Indenture
Trustee; Successor Indenture Trustees.
(a) If the Indenture Trustee ceases at any time to be a Indenture
Trustee approved by MARAD, it promptly will so notify the Agent and resign
hereunder and cooperate in all reasonable respects in the appointment of
its successor, but shall have no other liability hereunder for loss of its
status as an approved trustee. The Agent shall immediately appoint a
qualified successor trustee or shall take the actions provided for below
in the event a qualified successor trustee cannot be found by it. In
addition, the Agent may in its discretion remove the Indenture Trustee at
any time, without cause, by causing a written notice of such removal to be
delivered to the Indenture Trustee, the Borrowers and the Lenders which
notice shall state the effective date and the name of the qualified
successor trustee selected by the Agent. No removal shall be effective
unless a qualified successor trustee is available and willing to act for
the Lenders or unless the actions provided for below in the event a
qualified successor trustee is not available to the Agent have been
initiated. In the event of discharge or removal, the Indenture Trustee
shall execute all documents and take such other actions as necessary or
desirable to the Agent or the Majority Lenders to transfer the Indenture
Trustee's function of trustee to the successor trustee. The Indenture
Trustee's compensation shall cease as of the effective date of discharge
or removal, except those rights of indemnification which shall survive its
removal. Upon discharge or removal, the Indenture Trustee shall, within
thirty days, furnish the Agent, the Majority Lenders, the successor
trustee and the Borrowers a complete accounting of the trust estate, its
compensation, costs and expenses as of the date of discharge or removal.
Such amount shall be promptly paid by the Borrowers.
(b) (i) The Indenture Trustee or any successor thereto may resign
at any time without cause by giving at least ninety days prior written
notice to the Agent, the Majority Lenders and to the Borrowers, such
resignation to be effective on the date specified in such notice. The
Agent shall, prior to the date specified in such notice, appoint a
successor trustee meeting the requirements of Section 406. If the Agent
shall not have appointed such a qualified successor trustee within sixty
days after such notice, the Indenture Trustee may apply to any court of
competent jurisdiction to appoint a qualified successor trustee to act
until such time, if any, as a successor shall have been appointed by the
Agent as herein provided. Any qualified successor trustee so appointed by
such court shall immediately and without further act be superseded by any
qualified successor trustee appointed by the Agent. Any banking
institution or trust company becoming a successor trustee hereunder shall
be deemed the Indenture Trustee for all purposes hereof, and each
reference herein to the Indenture Trustee shall thereafter be deemed a
reference to such banking institution or trust company.
(ii) Any successor trustee, whether appointed by a court or by
the Agent as provided in subparagraph (b) (i), shall execute and deliver
to the predecessor trustee an instrument accepting such appointment, and
thereupon such successor trustee, without further act, shall become vested
with all the estates, properties, rights, powers, duties and trusts of the
predecessor trustee in the trust hereunder with like effect as if
originally named as the Indenture Trustee herein; and such predecessor
trustee shall execute and deliver an instrument transferring to such
successor trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers, duties and trusts of such predecessor trustee,
and such predecessor trustee shall duly assign, transfer, deliver and pay
over to such successor trustee any property or monies or other things of
value then held by such predecessor trustee upon the trusts herein
expressed.
(iii) Any successor trustee, however appointed, shall be a
trustee approved by MARAD in accordance with the provisions of Chapter 313
of Title 46 of the United States Code.
(iv) Any bank into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any bank resulting from
any merger, conversion on consolidation to which the Indenture Trustee
shall be a party, or any bank to which substantially all the business of
the Indenture Trustee may be transferred, shall, subject to the terms of
this Section 407(b), be the Indenture Trustee under this Indenture without
any further act, provided the successor bank remains qualified.
(v) Within sixty days of the effective date of its
resignation, the Indenture Trustee shall provide the Agent a statement and
accounting as though it had been removed in accordance with Section 407(a)
hereof.
(c) A successor trustee shall be appointed by an instrument in
writing which shall state the effective date on which said successor
trustee shall become the Indenture Trustee hereunder and the holder of
this instrument and the trust estate, which document shall contain the
executed acknowledgement of acceptance by the successor trustee of the
trust, the trust estate and the duties of the Indenture Trustee as herein
provided.
The Indenture Trustee or any predecessor trustee shall duly assign,
transfer, deliver and pay over to any successor trustee any property and
monies or things of value subject to the trust hereunder and held by the
Indenture Trustee or any predecessor trustee, as the case may be. Should
any act or further instrument from the Indenture Trustee, any predecessor
trustee, or the Lenders be required by any successor trustee for more
fully and certainly vesting in and confirming to such successor trustee
such estates, properties, rights, remedies and trusts, then on request by
such successor trustee any and all such acts and instruments shall be
done, made, executed, acknowledged and delivered by the Indenture Trustee,
any predecessor trustee, or the Lenders, as the case may be.
(d) Should for any reason the Agent be unable to locate a qualified
successor trustee, then prior to ceasing to act as trustee or becoming
disqualified to do so the Indenture Trustee shall cooperate with the Agent
and the Lenders in the following:
(i) First, petition MARAD for approval of a presently
unqualified bank or trust company satisfactory to the Agent or the
Majority Lenders and willing to act as trustee;
(ii) If MARAD approval cannot be obtained for such available
unqualified trustee then the Agent or the Majority Lenders and the
Indenture Trustee shall petition the United States District Court for the
Southern District of New York for instructions to the Indenture Trustee in
order that the trust estate may be preserved and to prevent the Agent, the
Majority Lenders or the Indenture Trustee from falling in violation of
law. To the extent that such may be required or necessary, the parties
hereto agree that said Court has jurisdiction for this purpose; however,
if, in the interest of justice, the said Court determines to transfer the
matter to any other United States court, the parties hereby agree to the
jurisdiction of such transferee court. Any such petition shall be served
upon the parties hereto and MARAD, with a copy mailed to the chief counsel
of MARAD and the Borrowers. The Indenture Trustee, the Agent, the Majority
Lenders and any successor trustee hereby agree to abide by the
instructions of the court issuing same and to all acts, execute such
documents and instructions as may be required in connection therewith and
all other instruments and documents necessary to preserve the trust estate
for the benefit of the Lenders, as beneficiaries, under the terms hereof
as well as preserving the adequacy and enforceability of any interest held
in the trust estate.
Section 408. Co-trustees and Separate Indenture Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any security may at the time be
located, the Borrowers and the Indenture Trustee shall have power to
appoint, and upon the written request of the Indenture Trustee, the Agent
or of the Majority Lenders, the Borrowers shall for such purpose join with
the Indenture Trustee in execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more
persons approved by the Indenture Trustee either to act as co-trustee,
jointly with the Indenture Trustee, and, if deemed necessary by the
appointing party, as secured party with respect to all or any part of the
security, or to act as separate trustee and, if deemed necessary as
aforesaid, as secured party with respect to any such property, in either
case with such powers as may be provided in the instrument of appointment,
and to vest in such person or persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Borrowers do not join in such
appointment within fifteen days after the receipt by them of a request so
to do, or in case an Event of Default has occurred and is continuing, the
Indenture Trustee acting alone shall have power to make such appointment.
Any person appointed as co-trustee or separate trustee hereunder shall
satisfy the qualifications prescribed in clauses (i), (iii), (iv) and (vi)
of Section 406.
Should any written instrument from the Borrowers be required by any
co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power,
any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Borrowers.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) All rights, powers, duties and obligations hereunder in respect
of the custody of the Security Documents held by the Indenture Trustee
hereunder, shall be exercised solely by the Indenture Trustee.
(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Indenture Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Indenture Trustee or by the Indenture Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law or any jurisdiction in which any particular act
is to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-trustee
or separate trustee.
(c) The Indenture Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Borrowers evidenced by
separate resolutions of the board of directors of each Borrower, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case an Event of Default shall have
occurred and be continuing, the Indenture Trustee may act alone in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Indenture Trustee or any
other such trustee hereunder.
(e) Any notice of instruction delivered to the Indenture Trustee by
the Agent or the Majority Lenders shall be deemed to have been delivered
to each such co-trustee and separate trustee.
ARTICLE 5
SATISFACTION AND DISCHARGE
Section 501. General.
If the Borrowers shall pay or cause to be paid all of the
Indebtedness, then this Indenture and the liens, estate and rights and
interest hereby and thereby created shall cease, determine and become null
and void, and the Indenture Trustee, upon written request of the
Borrowers, accompanied by an opinion of counsel acceptable to the
Indenture Trustee, and at the cost and expense of the Borrowers, shall
forthwith cause satisfaction and discharge of this Indenture and shall
execute and deliver to the Borrowers such instruments as may be necessary,
duly acknowledging the satisfaction and discharge of this Indenture and
forthwith the estate, right, title and interest of the Indenture Trustee
in and to any property held by it under this Indenture or under either
Mortgage shall thereupon cease, determine and become null and void, and
the Indenture Trustee shall transfer the same to the Borrowers.
Section 502. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture, (a)
the liabilities and obligations of the Borrowers to the Indenture Trustee
under Section 405 shall survive, and (b) if a Borrower's trustee in
bankruptcy or any Person under any applicable bankruptcy law shall recover
all or part of the Indebtedness payable hereunder from the Indenture
Trustee or from any of the Lenders, this Indenture and all other Security
Documents shall be deemed not to have been satisfied and discharged but
shall continue to be in full force and effect to the extent of the amount
so recovered.
ARTICLE 6
SUPPLEMENTAL INDENTURES
Section 601. Waivers and Supplemental Indentures With Consent of
Lenders.
This Indenture may not be waived, modified, amended or supplemented
without the prior written consent of the Agent or the Majority Lenders.
Section 602. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by any
indenture supplemental hereto or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and (subject to Sections 401 and 601) shall be fully protected in
relying upon, an opinion of counsel of the Borrowers stating that the
execution of such Supplemental Indenture is authorized or permitted by
this Indenture. The Indenture Trustee may, but shall not be obligated to,
enter into any such Supplemental Indenture which affects the Indenture
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 603. Effect of Supplemental Indentures.
Upon the execution of any indenture supplemental hereto, this
Indenture shall be modified in accordance therewith, and such Supplemental
Indenture shall form a part of this Indenture for all purposes.
ARTICLE 7
INSTRUCTIONS OF THE AGENT OR MAJORITY LENDERS
Section 701. Instructions of the Agent or Majority Lenders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver of or other action required or permitted by this Indenture to be
given by the Agent or the Majority Lenders (sometimes referred to herein
as "Instructions") shall be given in accordance with Section 102. The
Indenture Trustee and the Borrowers shall be entitled to assume that any
Instructions so given have been duly authorized. No instructions shall be
given which are in violation of this Indenture (or the Credit Agreement or
any of the Security Documents, as defined in the Credit Agreement) or in
violation of any applicable laws.
(b) Unless and until the Indenture Trustee shall have received
conflicting Instructions from the Agent or the Majority Lenders, any
request, demand, authorization, direction, notice, consent, waiver or
other action by the Agent or the Majority Lenders shall bind the other
Lenders in respect of anything done or suffered to be done by the
Indenture Trustee or either Borrower in reliance thereon.
ARTICLE 8
LIMITATION OF LIABILITY
Section 801. Limitation of Liability of Wilmington Trust Company.
It is expressly understood and agreed by the parties hereto that this
Indenture is executed and delivered by Wilmington Trust Company not
individually but solely as Indenture Trustee and nothing contained herein
shall be construed as creating any liability on Wilmington Trust Company
individually, including any covenant either express or implied herein, all
such liability, if any, being expressly waived by all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed on the day and year first above written.
READING & XXXXX DRILLING CO.
By: ______________________________
Title:
READING & XXXXX EXPLORATION CO.
By: ________________________________
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Indenture
Trustee
By: ______________________________
Title:
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ACKNOWLEDGEMENT
STATE OF NEW YORK )
) S.S.
COUNTY OF NEW YORK )
On this ______ day of November, 1995 before me personally appeared
_________________ to me known who being by me duly sworn did depose and
say that he resides at ___________________________, that he is
__________________ for READING & XXXXX DRILLING CO., the corporation
described in and which executed the foregoing instrument; and that he
signed his name thereto by order of the Board of Directors of READING &
XXXXX DRILLING CO.
__________________________
Notary Public
-----------------------------------------------------------------------------
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) S.S.
COUNTY OF NEW YORK )
On this ______ day of November, 1995 before me personally appeared
_________________ to me known who being by me duly sworn did depose and
say that he resides at ___________________________, that he is
__________________ for READING & XXXXX EXPLORATION CO., the corporation
described in and which executed the foregoing instrument; and that he
signed his name thereto by order of the Board of Directors of READING &
XXXXX EXPLORATION CO.
__________________________
Notary Public
-----------------------------------------------------------------------------
ACKNOWLEDGEMENT
STATE OF DELAWARE )
) S.S.
COUNTY OF NEW CASTLE )
On this ______ day of November, 1995 before me personally appeared
_________________ to me known who being by me duly sworn did depose and
say that he resides at ___________________________, that he is
__________________ for WILMINGTON TRUST COMPANY, the corporation described
in and which executed the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of WILMINGTON TRUST
COMPANY.
__________________________
Notary Public
