1
EXECUTION 4.3
[EXECUTION COPY]
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POGO PRODUCING COMPANY
AND
FLEET NATIONAL BANK
Trustee
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Indenture
Dated as of May 15, 1997
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$100,000,000
8 3/4% Series A Senior Subordinated Notes due 2007
and
8 3/4% Series B Senior Subordinated Notes due 2007
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2
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 1.3 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 1.4 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.2 Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.3 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.4 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.5 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.6 Security Register and Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.7 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.8 Additional Provisions for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 2.10 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 2.11 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.12 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.13 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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ARTICLE IV
REMEDIES
SECTION 4.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 54
SECTION 4.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.5 Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . 56
SECTION 4.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.8 Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . 57
SECTION 4.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.14 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.15 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE V
THE TRUSTEE
SECTION 5.1 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.3 Trustee Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . 61
SECTION 5.4 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.5 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.6 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.7 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.9 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.10 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 65
SECTION 5.12 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 66
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ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.1 Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.2 Reports By Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . 67
SECTION 7.2 Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.7 Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE IX
COVENANTS
SECTION 9.1 Payment of Principal, Premium, if any, and Interest . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.3 Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.4 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.5 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.6 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.8 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.9 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.10 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.11 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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SECTION 9.12 Limitation on Non-Guarantor Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . 82
SECTION 9.13 Limitation on Issuances and Sales of Restricted Subsidiary Capital Stock . . . . . . . . . . 83
SECTION 9.14 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 9.15 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 9.16 Limitation on Disposition of Proceeds of Asset Sales . . . . . . . . . . . . . . . . . . . . 85
SECTION 9.17 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.18 Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 9.19 Limitation on Other Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . 89
SECTION 9.20 Limitation on Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 9.21 Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 9.22 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE X
REDEMPTION OF SECURITIES
SECTION 10.1 Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 10.2 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 10.3 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 10.4 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 10.5 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 10.6 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 10.7 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 10.8 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE XI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.1 Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 93
SECTION 11.2 Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 11.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 11.4 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 11.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 11.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
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ARTICLE XII
GUARANTEES
SECTION 12.1 Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 12.2 Subsidiary Guarantors May Consolidate, etc. on Certain Terms . . . . . . . . . . . . . . . . 98
SECTION 12.3 Release of a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.4 Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 12.5 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 12.6 Execution and Delivery of Notation of Subsidiary Guarantee . . . . . . . . . . . . . . . . . 100
SECTION 12.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 12.8 Subsidiary Guarantees Subordinated to Guarantor Senior Indebtedness . . . . . . . . . . . . . 101
SECTION 12.9 Subsidiary Guarantors Not to Make Payments with Respect to Subsidiary
Guarantees in Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.10 Subsidiary Guarantees Subordinated to Prior Payment of All Guarantor
Senior Indebtedness upon Dissolution, etc . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 12.11 Holders to be Subrogated to Rights of Holders of Guarantor Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 12.12 Obligations of the Subsidiary Guarantors Unconditional . . . . . . . . . . . . . . . . . . . 105
SECTION 12.13 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . 106
SECTION 12.14 Application by Trustee of Money Deposited with it . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 12.15 Subordination Rights Not Impaired by Acts or Omissions of Subsidiary
Guarantors or Holders of Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . 107
SECTION 12.16 Holders Authorize Trustee to Effectuate Subordination of Subsidiary
Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 12.17 Right of Trustee to Hold Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . 108
SECTION 12.18 Article XII Not to Prevent Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 12.19 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1 Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 13.3 Suspension of Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . 110
SECTION 13.4 Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 13.5 Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 112
SECTION 13.6 Provisions Solely To Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 13.7 Trustee To Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 13.8 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 13.9 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
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SECTION 13.10 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . 115
SECTION 13.11 Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 13.12 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 13.13 No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 14.2 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.3 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors . . . . . . . . . . . . . . . . . 118
SECTION 14.5 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 14.6 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 14.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 14.8 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 14.9 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 14.10 Governing Law; Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 14.11 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SECTION 14.12 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SECTION 14.13 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SECTION 14.14 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . 121
EXHIBIT A FORM OF SECURITY . . . . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B FORM OF NOTATION RELATING TO SUBSIDIARY GUARANTEES . . . . .B-1
EXHIBIT C CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF SECURITIES . . . . . . . . . . . . . . . . . C-1
EXHIBIT D TRANSFEREE LETTER OF REPRESENTATIONS . . . . . . . . . . . .D-1
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
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Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture
Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7, 5.8
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2, 6.3(c)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3, 9.9
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8(a)
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14
Section 316(a) (last
sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2, 4.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3(d)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.10(b)
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE,
BE DEEMED TO BE A PART OF THE INDENTURE.
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INDENTURE, dated as of May 15, 1997 between POGO PRODUCING COMPANY, a
Delaware corporation (hereinafter called the "Company") and Fleet National
Bank, trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 8 3/4% Series A
Senior Subordinated Notes due 2007 (the "Series A Securities") and the
Company's 8 3/4% Series B Senior Subordinated Notes due 2007 (the "Series B
Securities" and, collectively with the Series A Securities, the "Securities" or
each, a "Security").
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company and the Trustee, in accordance with
their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person, (b) outstanding at the
time such Person becomes a Subsidiary of any other Person (other than any
Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Subsidiary) or (c) any renewals,
extensions, substitutions, refinancings or replacements (each, for purposes of
this clause, a "refinancing") by the Company of any Indebtedness described in
clause (a) or (b) of this definition, including any successive refinancings, so
long as (i) any such new Indebtedness shall be in a principal amount that does
not exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
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payable upon a declaration of acceleration thereof, such lesser amount as of
the date of determination) so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms
of the Indebtedness refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing, plus the
amount of expenses of the Company incurred in connection with such refinancing,
(ii) in the case of any refinancing of Subordinated Indebtedness, such new
Indebtedness is made subordinate to the Securities at least to the same extent
as the Indebtedness being refinanced and (iii) such new Indebtedness has an
Average Life longer than the Average Life of the Securities and a final Stated
Maturity later than the final Stated Maturity of the Securities.
"Act," when used with respect to any Holder, has the meaning specified in
Section 14.3.
"Adjusted Consolidated Net Tangible Assets" means (without duplication),
as of the date of determination, (a) the sum of (i) discounted future net
revenues from proved oil and gas reserves of the Company and its Restricted
Subsidiaries calculated in accordance with SEC guidelines before any state or
federal income taxes, as estimated by a nationally recognized firm of
independent petroleum engineers in a reserve report prepared as of the end of
the Company's most recently completed fiscal year, as increased by, as of the
date of determination, the estimated discounted future net revenues from (A)
estimated proved oil and gas reserves acquired since the date of such year-end
reserve report, and (B) estimated oil and gas reserves attributable to upward
revisions of estimates of proved oil and gas reserves since the date of such
year-end reserve report due to exploration, development or exploitation
activities, in each case calculated in accordance with SEC guidelines
(utilizing the prices utilized in such year-end reserve report), and decreased
by, as of the date of determination, the estimated discounted future net
revenues from (C) estimated proved oil and gas reserves produced or disposed of
since the date of such year-end reserve report and (D) estimated oil and gas
reserves attributable to downward revisions of estimates of proved oil and gas
reserves since the date of such year-end reserve report due to changes in
geological conditions or other factors which would, in accordance with standard
industry practice, cause such revisions, in each case calculated in accordance
with SEC guidelines (utilizing the prices utilized in such year-end reserve
report); provided, that in the case of each of the determinations made pursuant
to clauses (A) through (D), such increases and decreases shall be as estimated
by the Company's petroleum engineers, except that in the event there is a
Material Change as a result of such acquisitions, dispositions or revisions,
then the discounted future net revenues utilized for purposes of this clause
(a)(i) shall be confirmed in writing by a nationally recognized firm of
independent petroleum engineers, (ii) the capitalized costs that are
attributable to oil and gas properties of the Company and its Restricted
Subsidiaries to which no proved oil and gas reserves are attributable, based on
the Company's books and records as of a date no earlier than the date of the
Company's latest annual or quarterly financial statements, (iii) the Net
Working Capital on a date no earlier than the date of the Company's latest
annual or quarterly financial statements and (iv) the greater of (A) the net
book value on a date no earlier than the date of the Company's latest annual or
quarterly financial statements or (B) the appraised value, as estimated by
independent appraisers, of other tangible assets (including, without
duplication, Investments in unconsolidated Restricted Subsidiaries) of the
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Company and its Restricted Subsidiaries, as of the date no earlier than the
date of the Company's latest audited financial statements, minus (b) the sum of
(i) minority interests (other than a minority interest in a Subsidiary that is
a business trust or similar entity formed for the primary purpose of issuing
preferred securities the proceeds of which are loaned to the Company or a
Restricted Subsidiary), (ii) any net gas balancing liabilities of the Company
and its Restricted Subsidiaries reflected in the Company's latest audited
financial statements, (iii) to the extent included in (a)(i) above, the
discounted future net revenues, calculated in accordance with SEC guidelines
(utilizing the prices utilized in the Company's year-end reserve report),
attributable to reserves which are required to be delivered to third parties to
fully satisfy the obligations of the Company and its Restricted Subsidiaries
with respect to Volumetric Production Payments on the schedules specified with
respect thereto and (iv) the discounted future net revenues, calculated in
accordance with SEC guidelines, attributable to reserves subject to
Dollar-Denominated Production Payments which, based on the estimates of
production and price assumptions included in determining the discounted future
net revenues specified in (a)(i) above, would be necessary to fully satisfy the
payment obligations of the Company and its Restricted Subsidiaries with respect
to Dollar-Denominated Production Payments on the schedules specified with
respect thereto. If the Company changes its method of accounting from the
successful efforts method to the full cost method or a similar method of
accounting, "Adjusted Consolidated Net Tangible Assets" will continue to be
calculated as if the Company were still using the successful efforts method of
accounting.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
(a) the amount by which the fair value of the Properties of such Subsidiary
Guarantor exceeds (b) the total amount of liabilities of such Subsidiary
Guarantor at such date including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), but excluding liabilities under its Subsidiary
Guarantee.
"Affiliate" means, with respect to any specified Person, 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 this definition, beneficial ownership of 10% or more
of the voting common equity (on a fully diluted basis) or options or warrants
to purchase such equity (but only if exercisable at the date of determination
or within 60 days thereof) of a Person shall be deemed to constitute control of
such Person. No Person shall be deemed an Affiliate of an oil and gas royalty
trust solely by virtue of ownership of units of beneficial interest in such
trust.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or any Restricted Subsidiary shall be merged
with or into the Company or any Restricted Subsidiary or (b) the acquisition by
the Company or any Restricted Subsidiary of the Properties of any Person
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which constitute all or substantially all of the Properties of such Person or
any division or line of business of such Person.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition to any Person other than the Company or any of its Restricted
Subsidiaries (including by means of a Sale/Leaseback Transaction or by way of
merger or consolidation) (collectively, for purposes of this definition, a
"transfer"), directly or indirectly, in one or a series of related
transactions, of (a) any Capital Stock of any Restricted Subsidiary held by the
Company or any Restricted Subsidiary; (b) the properties and assets of any
division or line of business of the Company or any of its Restricted
Subsidiaries substantially as an entirety; or (c) any other Properties of the
Company or any of its Restricted Subsidiaries other than a disposition of
hydrocarbons or other mineral products in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include (i)
any transfer of Properties that is governed by, and made in accordance with,
the provisions of Article VII hereof; (ii) any transfer of Properties to any
Person, if permitted under Section 9.10 hereof; (iii) any trade or exchange of
properties and assets used in the Oil and Gas Business of the Company or any
Restricted Subsidiary or shares of Capital Stock in any Person in the Oil and
Gas Business owned by the Company or any Restricted Subsidiary for properties
and assets used in the Oil and Gas Business of any Person or shares of Capital
Stock in any Person owned or held by another Person, provided, that (A) the
Fair Market Value of the Properties traded or exchanged by the Company or such
Restricted Subsidiary (including any cash or Cash Equivalents, not to exceed
15% of such Fair Market Value, to be delivered by the Company or such
Restricted Subsidiary) is reasonably equivalent to the Fair Market Value of the
Properties (together with any cash or Cash Equivalents, not to exceed 15% of
such Fair Market Value) to be received by the Company or such Restricted
Subsidiary; provided, that if such Fair Market Value is equal to or in excess
of $10,000,000 the Company shall deliver to the Trustee a written appraisal by
a nationally recognized investment banking firm or appraisal firm, in each case
specializing or having a speciality in oil and gas Properties, and (B) such
exchange is approved by a majority of the Disinterested Directors; or (iv) any
transfer of Properties in a single transaction or series of related
transactions having a Fair Market Value of less than $5,000,000.
"Attributable Indebtedness" means, with respect to any particular lease
under which any Person is at the time liable and at any date as of which the
amount thereof is to be determined, the present value of the total net amount
of rent required to be paid by such Person under the lease during the primary
term thereof, without giving effect to any renewals at the option of the
lessee, discounted from the respective due dates thereof to such date of
determination at the rate of interest per annum implicit in the terms of the
lease. As used in the preceding sentence, the "net amount of rent" under any
lease for any such period shall mean the sum of rental and other payments
required to be paid with respect to such period by the lessee thereunder,
excluding any amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges. In the case of any lease which is terminable by the lessee upon
payment of a penalty, such net amount of rent shall also include the amount
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of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
"Average Life" means, with respect to any Indebtedness, as at any date
of determination, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years (and any portion thereof) from the date of
determination to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund or mandatory
redemption payment requirements) of such Indebtedness multiplied by (ii) the
amount of each such principal payment by (b) the sum of all such principal
payments.
"Bank Co-agents" mean Bank of Montreal and Banque Paribas as co-agents,
or any successor or replacement agents, under the Credit Agreement.
"Board of Directors" means, (a) with respect to the Company, either the
board of directors or any properly constituted committee thereof that is (i)
authorized to take the action in question and (ii) comprised of members, a
majority of whom are not Officers or employees of the Company or any Subsidiary
of the Company and (b) with respect to any Restricted Subsidiary, the board of
directors of that Restricted Subsidiary or any properly constituted committee
thereof that is authorized to take the action in question.
"Board Resolution" means, with respect to the Company, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by its Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee, and,
with respect to a Restricted Subsidiary, a copy of a resolution certified by
the Secretary or an Assistant Secretary of such Restricted Subsidiary to have
been duly adopted by its Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, the City of New York, New York, or the city in which the Trustee's
Corporate Trust Office is located, are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest
in such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under
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GAAP, and, for the purpose of this Indenture, the amount of such obligation at
any date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means (a) any evidence of Indebtedness with a
maturity of 365 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided, that the full faith and credit of the United States of America is
pledged in support thereof), (b) demand and time deposits and certificates of
deposit or acceptances with a maturity of 365 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $100,000,000 or any
commercial bank organized under the laws of any country other than the United
States of America that is a member of the Organization for Economic Cooperation
and Development ("OECD") and has total assets in excess of $100,000,000, (c)
commercial paper with a maturity of 365 days or less issued by a Person that is
not an Affiliate of the Company and is organized under the laws of any state of
the United States of America or the District of Columbia and rated at least A-1
by S&P or at least P-1 by Xxxxx'x (or, if at any time neither S&P nor Xxxxx'x
shall be rating such obligations, then from such other rating service as may be
acceptable to the Trustee), (d) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (a)
above entered into with any commercial bank meeting the specifications of
clause (b) above, (e) overnight bank deposits and bankers' acceptances at any
commercial bank meeting the qualifications specified in clause (b) above and
(f) investments in money market mutual or similar funds which have assets in
excess of $500,000,000.
"Change of Control" means the occurrence of any of the following events:
(a) the Company's properties and assets are sold or otherwise disposed of
substantially as an entirety on a consolidated basis to any Person or related
group of Persons in any one transaction or a series of related transactions;
(b) there shall be consummated any consolidation or merger of the Company (i)
in which the Company is not the continuing or surviving Person (other than a
consolidation or merger with a wholly owned Subsidiary of the Company in which
all shares of Common Stock outstanding immediately prior to the effectiveness
thereof are changed into or exchanged for the same number of shares of Common
Stock of such Subsidiary) or (ii) pursuant to which the Common Stock would be
converted into cash, securities or other property, in each case, other than a
consolidation or merger of the Company in which the holders of the Common Stock
immediately prior to the consolidation or merger have, directly or indirectly,
at least a majority of the Common Stock of the continuing or surviving Person
immediately after such consolidation or merger; or (c) any Person or any
Persons acting together which would constitute a "group" for purposes of
Section 13(d) of the Exchange Act (other than the Company, any Subsidiary of
the Company, any employee stock purchase plan, stock option plan or other stock
incentive plan or program, retirement plan or automatic dividend reinvestment
plan or any substantially similar plan of the Company or any Subsidiary of the
Company or any Person holding securities of the Company for or pursuant to the
terms of any such employee benefit plan), together with any Affiliates thereof,
shall acquire beneficial ownership (as defined in Rule 13d-3 under the Exchange
Act) of at least 50% of the Voting Stock of the Company.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations and rulings thereof or
thereunder issued by the Internal Revenue Service.
"Commission" or "SEC" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture, until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) the sum of Consolidated Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated Non-cash Charges deducted in
computing Consolidated Net Income, in each case, for such period, of the
Company and its Restricted Subsidiaries on a consolidated basis, all determined
in accordance with GAAP, decreased (to the extent included in determining
Consolidated Net Income) by the sum of (i) the amount of deferred revenues that
are amortized during such period and are attributable to reserves that are
subject to Volumetric Production Payments and (ii) amounts recorded in
accordance with GAAP as repayments of principal and interest pursuant to
Dollar-Denominated Production Payments, to (b) the sum of such Consolidated
Interest Expense for such period; provided, that (A) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness required to be computed on a pro forma basis in accordance with
clause (i) of Section 9.11 hereof and bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period, (B) in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness
under a revolving credit facility required to be computed on a pro forma basis
in accordance with clause (i) of Section 9.11 hereof shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period, provided, that such average daily balance shall be reduced by the
amount of any repayment of Indebtedness under a revolving credit facility
during the applicable period, which repayment permanently reduced the
commitments or amounts available to be reborrowed under such facility, (C)
notwithstanding clauses (A) and (B) of this proviso, interest on
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Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Rate Protection Obligations, shall
be deemed to have accrued at the rate per annum resulting after giving effect
to the operation of such agreements and (D) in making such calculation,
Consolidated Interest Expense shall exclude interest attributable to
Dollar-Denominated Production Payments.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP, including, without limitation, (i) any amortization of
debt discount, (ii) the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing and (v) all accrued interest, in each case to the extent attributable
to such period, (b) to the extent any Indebtedness of any Person (other than
the Company or a Restricted Subsidiary) is guaranteed by the Company or any
Restricted Subsidiary, the aggregate amount of interest paid or accrued by such
other Person during such period attributable to any such Indebtedness, in each
case to the extent attributable to that period, (c) the aggregate amount of the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP and (d) the aggregate amount of dividends paid or accrued on Redeemable
Capital Stock or Preferred Stock of the Company and its Restricted
Subsidiaries, to the extent such Redeemable Capital Stock or Preferred Stock is
owned by Persons other than Restricted Subsidiaries.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted by excluding (a) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto),
(b) net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (c) the net income (or net loss) of any Person
(other than the Company or any of its Restricted Subsidiaries), in which the
Company or any of its Restricted Subsidiaries has an ownership interest, except
to the extent of the amount of interest on indebtedness, dividends or other
distributions actually paid to the Company or its Restricted Subsidiaries in
cash by such other Person during such period (regardless of whether such cash
interest on indebtedness, dividends or other distributions is attributable to
net income (or net loss) of such Person during such period or during any prior
period), (d) net income (or net loss) of any Person combined with the Company
or any of its Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (e) the net income
of any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary is not at the
date of determination permitted, directly
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or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, (f) income
resulting from transfers of assets received by the Company or any Restricted
Subsidiary from an Unrestricted Subsidiary and (g) any write-downs of
non-current assets; provided, however, that any ceiling limitation write-downs
under SEC guidelines shall be treated as capitalized costs, as if such
write-downs had not occurred.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Company less the amount of such stockholders'
equity attributable to Redeemable Capital Stock or treasury stock of the
Company and its Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, depletion, amortization, impairment and other non-cash expenses
of the Company and its Restricted Subsidiaries reducing Consolidated Net Income
for such period, determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge which requires an accrual of or reserve for
cash charges for any future period).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Corporate
Trust Administration.
"Credit Agreement" means the Amended and Restated Credit Agreement dated
June 1, 1995 among the Company and Bank of Montreal and Banque Paribas, as
co-agents, and the other banks specified therein, including any notes and
guarantees executed in connection therewith, as such agreement may be amended,
modified, supplemented, extended, restated, replaced (including replacement
after the termination of such agreement), restructured, increased, renewed or
refinanced from time to time in one or more credit agreements, loan agreements,
instruments or similar agreements, whether or not with the same lenders or
agents, as such may be further amended, modified, supplemented, extended,
restated, replaced (including replacement after the termination of such
agreement), restructured, increased, renewed or refinanced from time to time.
"Credit Agreement Obligations" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, from time to time owed to
the lenders or any agent under or in respect of the Credit Agreement.
"Default" means any event, act or condition that is, or after notice or
passage of time or both would be, an Event of Default.
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18
"Definitive Securities" means Securities that are in the form set forth
in Exhibit A attached hereto (but without including the paragraph referred to
in the footnote on page A-2 thereof).
"Depositary" means with respect to the Securities issuable or issued in
whole or in part in global form, the Person specified in Section 2.6 hereof as
the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designated Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (a) all Guarantor Senior Indebtedness of such Subsidiary
Guarantor under the Credit Agreement Obligations and (b) any other Guarantor
Senior Indebtedness which (i) at the time of incurrence equals or exceeds
$10,000,000 in aggregate principal amount and (ii) is specifically designated
by such Subsidiary Guarantor in the instrument evidencing such Guarantor Senior
Indebtedness as "Designated Guarantor Senior Indebtedness" for purposes of this
Indenture.
"Designated Senior Indebtedness" means (a) all Senior Indebtedness
constituting Credit Agreement Obligations and (b) any other Senior Indebtedness
which (i) at the time of incurrence equals or exceeds $10,000,000 in aggregate
principal amount and (ii) is specifically designated by the Company in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" for purpose of this Indenture.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required
to deliver its resolution under this Indenture, a member of the Board of
Directors who does not have any material direct or indirect financial interest
(other than an interest arising solely from the beneficial ownership of Capital
Stock of the Company) in or with respect to such transaction or series of
transactions.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and all rules, regulations and rulings thereof
issued by the Internal Revenue Service or the Department of Labor thereunder.
"ERISA Affiliate" shall mean any subsidiary or trade or business
(whether or not incorporated) which is a member of a group of which the Company
is a member and which is under common control within the meaning of Section 414
of the Code (such rules and regulations shall also be deemed to apply to
foreign corporations and entities).
"Event of Default" has the meaning specified in Section 4.1 hereto.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Exchange Offer" means the offer by the Company to the Holders of all
outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Securities, in
an aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Fair Market Value" means the fair market value of any Property as
determined in good faith (a) by the Board of Directors if the fair market value
of such Property, as evidenced by a Board Resolution, is $5 million or more, or
(b) by an Officer of the Company if the fair market value of such Property, as
evidenced by an Officers' Certificate, is less than $5 million which
determination shall be conclusive for purposes of this Indenture. Unless
specifically required by the terms of this Indenture, no valuation or
assessment from any investment banker, appraiser or other third party shall be
required to be obtained in connection with either determination contemplated by
the first sentence of this definition of Fair Market Value.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
"Foreign Subsidiary" means (a) any Restricted Subsidiary engaged in the
Oil and Gas Business having the majority of its operations outside the United
States of America, irrespective of its jurisdiction of organization, and (b)
any other Restricted Subsidiary whose assets (excluding any cash and Cash
Equivalents) consist exclusively of Capital Stock or Indebtedness of one or
more Restricted Subsidiaries described in clause (a) of this definition.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States of America, which are applicable as of the date of this Indenture.
"Global Security" means a Security that is issued in global form in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of the Depositary and that contains the paragraph referred to in
the footnote on page A-2 of, and the additional schedule referred to in, the
form of Security attached hereto as Exhibit A.
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
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performance (or payment of damages in the event of nonperformance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. When used as a verb,
"guarantee" shall have a corresponding meaning.
"Guarantor Senior Indebtedness" means all Indebtedness of a Subsidiary
Guarantor created, incurred, assumed or guaranteed by such Subsidiary Guarantor
(and all renewals, substitutions, refinancings or replacements thereof)
(including the principal of, interest on and fees, premiums, expenses
(including costs of collection), indemnities and other amounts payable in
connection with such Indebtedness) (and including, in the case of the Credit
Agreement, interest accruing after the filing of a petition by or against such
Subsidiary Guarantor under any bankruptcy law, in accordance with and at the
rate, including any default rate, specified with respect to such Indebtedness,
whether or not a claim for such interest is allowed as a claim after such
filing in any proceeding under such bankruptcy law), unless the instrument
governing such Indebtedness expressly provides that such Indebtedness is not
senior in right of payment to its Subsidiary Guarantee. Notwithstanding the
foregoing, Guarantor Senior Indebtedness of a Subsidiary Guarantor will not
include (a) Indebtedness of such Subsidiary Guarantor evidenced by its
Subsidiary Guarantee, (b) Indebtedness of such Subsidiary Guarantor that is
expressly subordinated or junior in right of payment to any Guarantor Senior
Indebtedness of such Subsidiary Guarantor or its Subsidiary Guarantee, (c)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Title 11 United States Code, is by its terms without
recourse to such Subsidiary Guarantor or Non-Recourse Indebtedness, (d) any
repurchase, redemption or other obligation in respect of Redeemable Capital
Stock of such Subsidiary Guarantor, (e) to the extent it might constitute
Indebtedness, any liability for federal, state, local or other taxes owed or
owing by such Subsidiary Guarantor, (f) Indebtedness of such Subsidiary
Guarantor to the Company or any of the Company's other Subsidiaries or any
other Affiliate of the Company or any of such Affiliate's Subsidiaries, and (g)
that portion of any Indebtedness of such Subsidiary Guarantor which at the time
of issuance is issued in violation of this Indenture (but, as to any such
Indebtedness, no such violation shall be deemed to exist for purposes of this
clause (g) if the holder(s) of such Indebtedness or their representative or
such Subsidiary Guarantor shall have furnished to the Trustee an Opinion of
Counsel, addressed to the Trustee (which counsel may, as to matters of fact,
rely upon a certificate of such Subsidiary Guarantor) to the effect that the
incurrence of such Indebtedness does not violate the provisions of such
Indenture); provided, that the foregoing exclusions shall not affect the
priorities of any Indebtedness arising solely by operation of law in any case
or proceeding or similar event described in clause (a), (b) or (c) of the
definition of "Insolvency or Liquidation Proceedings."
"Hedging Obligations" means obligations of any Person arising out of
hedging transactions entered into in the ordinary course of business,
including, without limitation, swaps, options, forward sales and futures
contracts entered into in connection with interest rates, currencies and
energy-related commodities.
"Holder" or "Noteholder" means a Person in whose name a Security is
registered in the Security Register.
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"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade accounts payable
and other accrued current liabilities incurred in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit, bankers'
acceptance or other similar credit transaction and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, if, and to the extent, any of
the foregoing would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, (b) all obligations of such Person evidenced
by bonds, notes, debentures or other similar instruments, if, and to the
extent, any of the foregoing would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, (c) all Indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade accounts payable arising in the ordinary course of business, (d) all
Capitalized Lease Obligations of such Person, (e) the Attributable Indebtedness
(in excess of any related Capitalized Lease Obligations) related to any
Sale/Leaseback Transaction of such Person, (f) all Indebtedness referred to in
the preceding clauses of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (g) all guarantees by such Person of Indebtedness
referred to in this definition (including, with respect to any Production
Payment, any warranties or guarantees of production or payment by such Person
with respect to such Production Payment but excluding other contractual
obligations of such Person with respect to such Production Payment), (h) all
Redeemable Capital Stock of such Person valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued dividends, (i) all
obligations of such Person under or in respect of currency exchange contracts
and Interest Rate Protection Obligations and (j) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of
such Person of the types referred to in clauses (a) through (i) above. For
purposes hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant to this Indenture, and if such price is
based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock, provided, however,
that if such Redeemable Capital Stock is not at the date of determination
permitted or required to be repurchased, the "maximum fixed repurchase price"
shall be the book value of such Redeemable Capital Stock. Subject to clause
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(g) of the first sentence of this definition, neither Dollar-Denominated
Production Payments nor Volumetric Production Payments shall be deemed to be
Indebtedness.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Sachs & Co., as initial purchasers in the Offering.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, (a) an insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization proceeding or other similar case or
proceeding in connection therewith, relating to such Person or to its
creditors, as such, or its assets, (b) any liquidation, dissolution or other
winding-up of such Person, whether voluntary or involuntary, or (c) any
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of such Person.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and includes, without limitation, interest rate swaps,
caps, floors, collars and similar agreements or arrangements designed to
protect against or manage such Person's and any of its Subsidiaries' exposure
to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee of Indebtedness or other extension of credit or
capital contribution to (by means of any transfer of cash or other property or
assets to others or any payment for property, assets or services for the
account or use of others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities (including
derivatives) or evidences of Indebtedness issued by, any other Person. In
addition, the Fair Market Value of the net assets of any Restricted Subsidiary
at the time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary shall be deemed to be an "Investment" made by the Company in such
Unrestricted Subsidiary at such time. "Investments" shall exclude (a)
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices and (b) Interest Rate Protection Obligations entered
into in the ordinary course of business or as required by any Permitted
Indebtedness, Permitted Subsidiary Indebtedness or any Indebtedness incurred in
compliance with Section 9.11 hereof, but only to the extent that the notional
principal amount of such Interest Rate Protection Obligations does not exceed
105% of the principal amount of
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such Indebtedness to which such Interest Rate Protection Obligations relate and
(c) bonds, notes, debentures or other securities received as a result of Asset
Sales permitted under Section 9.16 hereof.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any agreement to give or xxxxx x Xxxx or any lease, conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing) upon or with respect to any property of any kind; provided,
however, "Lien" shall not include rights created in a third Person in
connection with the creation by the Company or a Subsidiary of a Production
Payment. A Person shall be deemed to own subject to a Lien any property which
such Person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices) of more than 50% during a fiscal quarter
in the estimated discounted future net cash flows from proved oil and gas
reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (a) (i) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from
the calculation of Material Change: (i) any acquisitions during the quarter of
oil and gas reserves that have been estimated by a nationally recognized firm
of independent petroleum engineers and on which a report or reports exist and
(ii) any disposition of properties held at the beginning of such quarter that
have been disposed of as provided in Section 9.16 hereof.
"Material Restricted Subsidiary" means, at any particular time, (a) any
Subsidiary Guarantor and (b) any other Restricted Subsidiary that, together
with its Subsidiaries, (i) accounted for more than 5% of the consolidated
revenues of the Company and its Restricted Subsidiaries for the most recently
completed fiscal year of the Company or (ii) was the owner of more than 5% of
the consolidated assets of the Company and its Restricted Subsidiaries at the
end of such fiscal year, all as shown in the case of (i) and (ii) on the
consolidated financial statements of the Company and its Restricted
Subsidiaries for such fiscal year.
"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as provided therein or
herein, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, Section 414 of the Code or Section 3(37) of ERISA,
subject to Title IV of ERISA,
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to which the Company or any ERISA Affiliate is making or accruing or has made or
accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean any employee benefit plan within the
meaning of Section 3(3) of ERISA, other than a Multiemployer Plan, subject to
Title IV of ERISA, to which the Company or any ERISA Affiliate and an employer
other than an ERISA Affiliate or the Company contribute and which is subject
to Section 4064 of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof received by the Company or any Restricted Subsidiary in the form of
cash or Cash Equivalents (including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary)), net of (a) brokerage commissions and
other fees and expenses (including fees and expenses of engineers, legal
counsel, accountants and investment banks) related to such Asset Sale, (b)
provisions for all taxes payable as a result of such Asset Sale, (c) amounts
required to be paid (i) to any minority interest holder or other Person (other
than the Company or any Restricted Subsidiary) owning a beneficial interest in
the assets subject to the Asset Sale or (ii) in respect of any Indebtedness
(other than Indebtedness under the Credit Agreement) secured by a Lien on any
of the Properties that were the subject of such Asset Sale and (d) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP consistently applied
against any liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee; provided,
however, that any amounts remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net Cash Proceeds.
"Net Working Capital" means (a) all current assets of the Company and
its Restricted Subsidiaries, minus (b) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with GAAP.
"Non-payment Default" means, for purposes of Article XIII hereof, any
event (other than a Payment Default) the occurrence of which entitles one or
more Persons to act to accelerate the maturity of any Designated Senior
Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company or a Restricted Subsidiary incurred in connection
with the acquisition by the Company or a Restricted Subsidiary of any property
or assets and as to which (a) the holders of such Indebtedness agree that they
will look solely to the property or assets so acquired and securing such
Indebtedness for payment on or in respect of such Indebtedness and (b) no
default with
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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.
"Note Obligations" means any principal of, premium, if any, and interest
on, and any other amounts (including, without limitation, any payment
obligations with respect to the Securities as a result of any Asset Sale,
Change of Control or redemption) owing in respect of, the Securities payable
pursuant to the terms of the Securities or this Indenture or upon acceleration
of the Securities.
"Offering" means the Offering of the Series A Securities pursuant to the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the Company,
dated May 15, 1997, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, a Vice President, the Chief Financial Officer, the Treasurer or
an Assistant Treasurer of such Person or any individual holding a similar or
greater position of authority within the organization of such Person or, if
such Person is a limited partnership, within the organization of the general
partner of such limited partnership, including, without limitation, the manager
or managing member of a limited liability company or a director or managing
director of a foreign subsidiary.
"Officers' Certificate" means a certificate delivered to the Trustee
signed by the Chairman, the President, a Vice President or the Chief Financial
Officer, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company.
"Oil and Gas Business" means (a) the acquisition, exploration,
exploitation, development, operation and disposition of interests in oil, gas
and other hydrocarbon properties, (b) the gathering, marketing, treating,
processing, storage, refining, selling and transporting of any production from
such interests or properties, (c) any business relating to or arising from
exploration for or exploitation, development, production, treatment,
processing, storage, refining, transportation or marketing of oil, gas and
other minerals and products produced in association therewith, (d) any power
generation and electrical transmission business in a jurisdiction outside North
America where fuel required by such business is supplied, directly or
indirectly, from hydrocarbons produced substantially from properties in which
the Company or its Restricted Subsidiaries, directly or indirectly,
participates and (e) any activity necessary, appropriate or incidental to the
activities described in the foregoing clauses (a) through (d) of this
definition.
"Opinion of Counsel" means a written opinion of legal counsel for the
Company (or any Subsidiary Guarantor, if applicable), including an employee of
the Company (or any Subsidiary Guarantor, if applicable), who is reasonably
acceptable to the Trustee.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(c) Securities, except to the extent provided in
Sections 11.2 and 11.3 hereof, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article XI hereof; and
(d) Securities which have been paid pursuant to Section
2.9 hereof or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities
owned by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities, or any Affiliate of the Company, any Subsidiary Guarantor or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, consent, notice or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company, any Subsidiary Guarantor or any other obligor upon the
Securities, or any Affiliate of the Company, any Subsidiary Guarantor, or such
other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment to the Securities.
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"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest on any Securities on behalf of the Company.
"Payment Default" means any default in the payment when due (whether at
Stated Maturity, upon scheduled repayment, upon acceleration or otherwise) of
principal of (or premium, if any, on) or interest on, or of unreimbursed
amounts under any drawn letter of credit or fees relating to any letter of
credit constituting, any Designated Senior Indebtedness.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PBGC Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA sponsored by the Company or an ERISA Affiliate (excluding
any Multiemployer Plan and any Multiple Employer Plan) and which is subject to
Title IV of ERISA or Section 412 of the Code.
"Permitted Guarantor Junior Securities" means, with respect to any
Subsidiary Guarantor, debt or equity securities of such Subsidiary Guarantor or
any successor corporation provided for or by a plan of reorganization or
readjustment that are subordinated at least to the same extent that such
Subsidiary Guarantee is subordinated to the payment of all Guarantor Senior
Indebtedness of such Subsidiary Guarantor when outstanding, so long as the
effect of any exclusion employing this definition is not to cause such
Subsidiary Guarantee to be treated in any case or proceeding or similar event
described in clause (a), (b) or (c) of the definition of Insolvency or
Liquidation Proceeding as part of the same class of claims as Guarantor Senior
Indebtedness of such Subsidiary Guarantor or any class of claims pari passu
with, or senior to, Guarantor Senior Indebtedness of such Subsidiary Guarantor,
for any payment or distribution; provided, that (a) if a new corporation
results from such reorganization or readjustment, such corporation assumes any
Guarantor Senior Indebtedness of such Subsidiary Guarantor not paid in full in
cash or Cash Equivalents in connection with such reorganization or readjustment
and (b) the rights of the holders of such Guarantor Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company under one or more bank
credit or revolving credit facilities in an aggregate principal amount
at any one time outstanding not to exceed (i) the greater of (A)
$270,000,000 and (B) an amount equal to the sum of (1) $170,000,000
and (2) 10% of Adjusted Consolidated Net Tangible Assets determined as
of the date of the most recent quarterly consolidated financial
statements of the Company and its Restricted Subsidiaries, less (ii)
the amount of Net Cash Proceeds applied to reduce Indebtedness
pursuant to Section 9.16 hereof (together with interest and fees under
such facilities, the "Maximum Credit Amount," with the Maximum Credit
Amount being an aggregate maximum amount for the Company and all
Guarantor Subsidiaries,
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pursuant to clause (a) of the definition of "Permitted Subsidiary
Indebtedness"), and any renewals, amendments, extensions, supplements,
modifications, deferrals, refinancings or replacements (each, for
purposes of this clause, a "refinancing") thereof by the Company,
including any successive refinancings thereof by the Company, so long
as the aggregate principal amount of any such new Indebtedness,
together with the aggregate principal amount of all other Indebtedness
outstanding pursuant to this clause (a) (and clause (a) of the
definition of "Permitted Subsidiary Indebtedness"), shall not at any
one time exceed the Maximum Credit Amount;
(b) Indebtedness of the Company under the Securities;
(c) Indebtedness of the Company outstanding on the date
of this Indenture (and not repaid or defeased with the proceeds of the
Offering);
(d) obligations of the Company pursuant to Interest Rate
Protection Obligations, but only to the extent such obligations do not
exceed 105% of the aggregate principal amount of the Indebtedness
covered by such Interest Rate Protection Obligations; obligations
under currency exchange contracts entered into in the ordinary course
of business; and Hedging Obligations;
(e) Indebtedness of the Company to any Restricted
Subsidiaries;
(f) in-kind obligations relating to net gas balancing
positions arising in the ordinary course of business and consistent
with past practice;
(g) Indebtedness in respect of bid, performance or surety
bonds issued or other reimbursement obligations for the account of the
Company in the ordinary course of business, including guarantees and
letters of credit supporting such bid, performance, surety bonds or
other reimbursement obligations (in each case other than for an
obligation for money borrowed);
(h) Non-Recourse Indebtedness;
(i) Indebtedness incurred in respect of any letters of
credit in the ordinary course of business of the Company or
reimbursement obligations in respect thereof;
(j) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing")
by the Company of any Indebtedness of the Company described in clause
(b) or (c) above, including any successive refinancings by the
Company, so long as (i) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount as of the date
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of determination) so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant to
the terms of the Indebtedness refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus the amount of expenses of the Company incurred in
connection with such refinancing, and (ii) in the case of any
refinancing of Subordinated Indebtedness, such new Indebtedness is
made subordinate to the Securities at least to the same extent as the
Indebtedness being refinanced and (iii) such new Indebtedness has an
Average Life equal to or longer than the Average Life of the
Indebtedness being refinanced and a final Stated Maturity equal to or
later than the final Stated Maturity of the Indebtedness being
refinanced;
(k) other Indebtedness of the Company in an aggregate
principal amount not in excess of $25,000,000 at any one time
outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any of its Restricted
Subsidiaries;
(c) Investments by the Company or any of its Restricted
Subsidiaries in another Person, if as a result of such Investment (i)
such other Person becomes a Restricted Subsidiary of the Company or
(ii) such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all of its properties and
assets to, the Company or a Restricted Subsidiary;
(d) entry into operating agreements, joint ventures,
partnership agreements, working interests, royalty interests, mineral
leases, processing agreements, farm-out agreements, contracts for the
sale, transportation or exchange of oil and natural gas, unitization
agreements, pooling arrangements, area of mutual interest agreements,
development agreements, joint ownership arrangements and other similar
or customary agreements, transactions, properties, interests, and
arrangements, whether or not any such Investment involves or results
in the creation of a legal entity, and Investments and expenditures in
connection therewith or pursuant thereto, in each case made or entered
into in the ordinary course of the Company or its Restricted
Subsidiaries' Oil and Gas Business;
(e) entry into any arrangement pursuant to which the
Company or any of its Restricted Subsidiaries may incur Hedging
Obligations; and
(f) other Investments having an aggregate fair market
value (measured on the date each such Investment was made without
giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (f)
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that are at the time outstanding (net of repayments, dividends and
distributions received with respect to such Investments), not to
exceed $25,000,000 at any one time outstanding.
"Permitted Junior Securities" means debt or equity securities of the
Company or any successor corporation provided for or by a plan of
reorganization or readjustment that are subordinated at least to the same
extent that the Securities are subordinated to the payment of all Senior
Indebtedness when outstanding, so long as the effect of any exclusion employing
this definition is not to cause the Securities to be treated in any case or
proceeding or similar event described in clause (a), (b) or (c) of the
definition of Insolvency or Liquidation Proceeding as part of the same class of
claims as Senior Indebtedness or any class of claims pari passu with, or senior
to, Senior Indebtedness, for any payment or distribution; provided, that (a) if
a new corporation results from such reorganization or readjustment, such
corporation assumes any Senior Indebtedness not paid in full in cash or Cash
Equivalents in connection with such reorganization or readjustment and (b) the
rights of the holders of such Senior Indebtedness are not, without the consent
of such holders, altered by such reorganization or readjustment.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date the Securities are
first issued;
(b) Liens securing the Securities;
(c) Liens in favor of the Company or a Subsidiary
Guarantor;
(d) Liens securing any Senior Indebtedness or Guarantor
Senior Indebtedness;
(e) Liens for taxes, assessments and governmental charges
or claims either (i) not delinquent or (ii) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(f) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
(g) Liens incurred and deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security and Liens incurred and deposits
made to secure the payment or performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government contracts and
leases, trade contracts (other than to secure an obligation for borrowed
money), performance and return of money bonds and other similar obligations
(exclusive of obligations for the
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payment of borrowed money but including lessee and operator obligations under
statutes, governmental regulations or instruments related to the ownership,
exploration and production of oil, gas and minerals on state, federal or
foreign lands or waters);
(h) pre-judgment Liens and judgment Liens not giving rise
to an Event of Default so long as any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceeding may be initiated
shall not have expired;
(i) any interest or title of a lessor under any
Capitalized Lease Obligation or operating lease;
(j) Liens resulting from the deposit of funds or
evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of
the Company or any of the Subsidiaries; customary Liens for the fees, costs and
expenses of trustees and escrow agents pursuant to the indenture, escrow
agreement or other similar agreement establishing such trust or escrow
arrangement; and Liens pursuant to merger agreements, stock purchase
agreements, asset sale agreements and similar agreements (i) limiting the
transfer of properties and assets pending consummation of the subject
transaction and (ii) in respect of xxxxxxx money deposits, good faith deposits,
purchase price adjustment escrows or similar deposits or escrow arrangements
made or established thereunder;
(k) Liens securing any Hedging Obligations of the Company
or any Restricted Subsidiary;
(l) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;
(m) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(n) Liens encumbering property or assets under
construction arising from progress or partial payments by a customer of the
Company or its Restricted Subsidiaries relating to such property or assets and
Liens to secure Indebtedness used to finance all or a part of the construction
of property or assets used by the Company or any of its Restricted Subsidiaries
in the Oil and Gas Business, provided, that such Liens do not extend to any
other property or assets owned by the Company or its Restricted Subsidiaries;
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(o) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset and
set-off;
(p) Liens securing Interest Rate Protection Obligations
which Interest Rate Protection Obligations relate to Indebtedness that is
secured by Liens otherwise permitted under this Indenture;
(q) Liens on, or related to, properties or assets to
secure all or part of the costs incurred in the ordinary course of business for
the exploration, drilling, development or operation thereof;
(r) Liens on pipeline or pipeline facilities which arise
out of operation of law;
(s) Liens arising under operating agreements, joint
venture agreements, partnership agreements, oil and gas leases, farm-out
agreements, division orders, contracts for the sale, purchase, transportation,
processing or exchange of oil, gas or other hydrocarbons, unitization and
pooling declarations and agreements, area of mutual interest agreements,
development agreements, joint ownership arrangements and other agreements which
are customary in the Oil and Gas Business;
(t) Liens reserved in oil and gas mineral leases for
bonus or rental payments and for compliance with the terms of such leases;
(u) Liens constituting survey exceptions, encumbrances,
easements, or reservations of, or rights to others for, rights-of-way, zoning,
restrictions and other similar charges and encumbrances as to the use of real
properties, and minor defects of title which, in the case of any of the
foregoing, were not incurred or created to secure the payment of borrowed money
or the deferred purchase price of Property or services, and in the aggregate do
not interfere in any material respect with the ordinary conduct of the business
of the Company or its Restricted Subsidiaries;
(v) rights reserved to or vested in any municipality or
governmental, statutory or public authority by the terms of any right, power,
franchise, grant, license or permit, or by any provision of law, to terminate
such right, power, franchise, grant, license or permit or to purchase, condemn,
expropriate or recapture or to designate a purchaser of any of the property of
such Person; rights reserved to or vested in any municipality or governmental,
statutory or public authority to control or regulate any property of such
Person, or to use such property in a manner which does not materially impair
the use of such property for the purposes for which it is held by such Person;
any obligation or duties affecting the property of such Person to any
municipality or governmental, statutory or public authority with respect to any
franchise, grant, license or permit;
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(w) Liens securing Non-Recourse Indebtedness; provided,
however, that the related Non-Recourse Indebtedness shall not be secured by any
property or assets of the Company or any Restricted Subsidiary other than the
property and assets acquired by the Company with the proceeds of such
Non-Recourse Indebtedness; and
(x) Liens securing Acquired Indebtedness; provided,
however, that any such lien extends only to the properties or assets that were
subject to such Lien prior to the related acquisition by the Company or such
Restricted Subsidiary and was not created, incurred or assumed in contemplation
of such transaction.
Notwithstanding anything in clauses (a) through (x) of this definition, the
term "Permitted Liens" does not include any Liens resulting from the creation,
incurrence, issuance, assumption or guarantee of any Production Payments other
than Production Payments that are created, incurred, issued, assumed or
guaranteed in connection with the financing of, and within 30 days after, the
acquisition of the Properties are subject thereto.
"Permitted Subsidiary Indebtedness" means any of the following:
(a) Indebtedness of any Guarantor Subsidiary under one or more
bank credit or revolving credit facilities (and "refinancings" thereof) in an
amount at any one time outstanding not to exceed the Maximum Credit Amount (in
the aggregate for all Guarantor Subsidiaries and the Company, pursuant to
clause (a) of the definition of "Permitted Indebtedness");
(b) Indebtedness of any Restricted Subsidiary outstanding on the
date of this Indenture;
(c) obligations of any Restricted Subsidiary pursuant to Interest
Rate Protection Obligations, but only to the extent such obligations do not
exceed 105% of the aggregate principal amount of the Indebtedness covered by
such Interest Rate Protection Obligations; and Hedging Obligations of any
Restricted Subsidiary;
(d) the Subsidiary Guarantees (and any assumption of the
obligations guaranteed thereby);
(e) Indebtedness of any Restricted Subsidiary relating to
guarantees by such Restricted Subsidiary of Permitted Indebtedness;
(f) in-kind obligations relating to net gas balancing positions
arising in the ordinary course of business and consistent with past practice;
(g) Indebtedness in respect of bid, performance or surety bonds or
other reimbursement obligations issued for the account of any Restricted
Subsidiary in the ordinary
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course of business, including guarantees and letters of credit supporting such
bid, performance, surety bonds or other reimbursement obligations (in each case
other than for an obligation for money borrowed);
(h) Indebtedness of any Restricted Subsidiary to any other
Restricted Subsidiary or to the Company;
(i) Indebtedness relating to guarantees by any Restricted
Subsidiary permitted to be incurred pursuant to Section 9.12(a) hereof;
(j) Indebtedness incurred in respect of letters of credit in the
ordinary course of business of any Restricted Subsidiary or reimbursement
obligation in respect thereof;
(k) Non-Recourse Indebtedness;
(l) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by any
Restricted Subsidiary of any Indebtedness of such Restricted Subsidiary,
including any successive refinancings by such Restricted Subsidiary, so long as
(i) any such new Indebtedness shall be in a principal amount that does not
exceed the principal amount (or, if such Indebtedness being refinanced provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the Indebtedness
refinanced or the amount of any premium reasonably determined by such
Restricted Subsidiary as necessary to accomplish such refinancing, plus the
amount of expenses of such Subsidiary incurred in connection with such
refinancing and (ii) such new Indebtedness has an Average Life equal to or
longer than the Average Life of the Indebtedness being refinanced and a final
Stated Maturity equal to or later than the final Stated Maturity of the
Indebtedness being refinanced; and
(m) other Indebtedness incurred by one or more Restricted
Subsidiaries that are not Guarantor Subsidiaries in an aggregate principal
amount not to exceed $20,000,000 at any time outstanding.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.9 hereof in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
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"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all classes
and series of preferred or preference stock of such Person.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Public Market" exists at any time with respect to the Qualified
Capital Stock of the Company if such Qualified Capital Stock of the Company is
then (a) registered with the Commission pursuant to Section 12(b) or 12(g) of
the Exchange Act and (b) traded either on a national securities exchange or on
the NASDAQ Stock Market.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Qualified Redemption Transaction" means a call for redemption of any
Capital Stock or Subordinated Indebtedness (including any Subordinated
Indebtedness accounted for as a minority interest of the Company that is held
by a Subsidiary that is a business trust or similar entity formed for the
primary purpose of issuing preferred securities the proceeds of which are
loaned to the Company or a Restricted Subsidiary) that by its terms is
convertible into Common Stock of the Company if on the date of notice of such
call for redemption (a) a Public Market exists in the shares of Common Stock of
the Company and (b) the average closing price on the Public Market for shares
of Common Stock of the Company for the twenty trading days immediately
preceding the date of such notice exceeds 120% of the conversion price per
share (determined by reference to the redemption price) of Common Stock of the
Company issuable upon conversion of the Capital Stock or Subordinated
Indebtedness called for redemption.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed
prior to 91 days after the final Stated Maturity of the Securities or is
redeemable at the option of the holder thereof at any time prior to 91 days
after such final Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to 91 days after such final Stated Maturity.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" shall have the meaning assigned to such term
in the Registration Rights Agreement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated as of May 22, 1997, among the Company and the Initial
Purchasers.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 1 or November 1 (whether or not a Business Day, as the case
may be), next preceding each such Interest Payment Date.
"Reportable Event" shall mean any event described in Section 4043
(excluding subsections (b)(7) and (b)(9)) of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the provision for
thirty-day notice to the PBGC under such regulations).
"Responsible Officer," when used with respect to the Trustee, means
any officer in the corporate trust department of the Trustee and also means,
with respect to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary of the
Company is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of this Indenture.
"S&P" means Standard and Poor's Rating Group, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Sale/Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which properties or assets are sold
or transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries; provided, however, Sale/Leaseback Transactions shall not
include transactions whereby property or assets are sold or transferred by the
Company or any of its Restricted Subsidiaries to any Affiliate of the Company
or pursuant to any Permitted Investment constituting a joint ownership
arrangement, which property or assets are leased back, directly or indirectly,
to the Company, any Affiliate of the Company or to the constituent parties to
any such joint venture arrangement.
"Securities" means the Series A Securities and the Series B Securities
treated as a single class of Securities. For purposes of this Indenture, the
term "Securities" shall, except where the context otherwise requires, include
the Subsidiary Guarantees, if any.
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"Securities Act" means the Securities of 1933, as amended, or any
successor statute.
"Security Custodian" means the Trustee, as custodian with respect to
the Global Securities, or any successor entity thereto.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company (including, in the case of the
Credit Agreement, interest accruing after the filing of a petition by or
against the Company under any bankruptcy law, in accordance with and at the
rate, including any default rate, specified with respect to such indebtedness,
whether or not a claim for such interest is allowed as a claim after such
filing in any proceeding under such bankruptcy law), whether outstanding on the
date of this Indenture or thereafter created, incurred or assumed, unless, in
the case of any particular Indebtedness, the instrument creating or evidencing
the same or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (a)
Indebtedness evidenced by the Securities, (b) Indebtedness that is expressly
subordinate or junior in right of payment to any Senior Indebtedness of the
Company, (c) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11 United States Code, is by its terms
without recourse to the Company or which is Non-Recourse Indebtedness, (d) any
repurchase, redemption or other obligation in respect of Redeemable Capital
Stock of the Company, (e) to the extent it might constitute Indebtedness, any
liability for federal, state, local or other taxes owed or owing by the
Company, (f) Indebtedness of the Company to a Subsidiary of the Company or any
other Affiliate of the Company or any of such Affiliate's Subsidiaries, and (g)
that portion of any Indebtedness of the Company which at the time of issuance
is issued in violation of this Indenture (but, as to any such Indebtedness, no
such violation shall be deemed to exist for purposes of this clause (g) if the
holder(s) of such Indebtedness or their representative or the Company shall
have furnished to the Trustee an Opinion of Counsel addressed to the Trustee
(which counsel may, as to matters of fact, rely upon a certificate of the
Company) to the effect that the incurrence of such Indebtedness does not
violate the provisions of such Indenture); provided, that the foregoing
exclusions shall not affect the priorities of any Indebtedness arising solely
by operation of law in any case or proceeding or similar event described in
clause (a), (b) or (c) of the definition of "Insolvency or Liquidation
Proceeding."
"Senior Representative" means the Bank Co-agents or any other
representatives designated in writing to the Trustee of the holders of any
class or issue of Designated Senior Indebtedness; provided, in the absence of a
representative of the type described above, any holder or holders of a majority
of the principal amount outstanding of any class or issue of Designated Senior
Indebtedness may collectively act as Senior Representative for such class or
issue, subject to the provisions of any agreements relating to such Designated
Senior Indebtedness.
"Series A Securities" means the Company's 8 3/4% Series A Senior
Notes due 2007 to be issued pursuant to this Indenture.
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"Series B Securities" means the Company's 8 3/4% Series B Senior
Notes due 2007 to be issued pursuant to this Indenture in the Exchange Offer.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.10 hereof.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable and, when used with respect to any other
Indebtedness or any installment of interest thereon, means the date specified
in the instrument evidencing or governing such Indebtedness as the fixed date
on which the principal of such Indebtedness or such installment of interest is
due and payable.
"Subordinated Indebtedness" means (a) the Company's 5 1/2% Convertible
Subordinated Notes due 2006 issued under the Indenture dated as of June 15,
1996 between the Company and Fleet National Bank, as Trustee, (b) the Company's
5 1/2% Convertible Subordinated Notes due 2004 issued under the Indenture dated
as of March 23, 1994 between the Company and Fleet National Bank, as Trustee,
and (c) other Indebtedness of the Company which, by its terms, is subordinated
in right of payment to the Notes.
"Subsidiary" means, with respect to any Person, a corporation,
partnership, limited liability company, association or other business entity a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof. For purposes of the foregoing definition, an
arrangement by which a Person who owns an interest in an oil and gas property
is subject to a joint operating agreement, processing agreement, net profits
interest, overriding royalty interest, farmout agreement, development
agreement, area of mutual interest agreement, joint bidding agreement,
unitization agreement, pooling arrangement or other similar agreement or
arrangement shall not, in and of itself, be considered a Subsidiary.
"Subsidiary Guarantee" means any guarantee of the Securities by (a)
any Subsidiary Guarantor in accordance with the provisions of Section 12.1
hereof and (b) any Restricted Subsidiary in accordance with Section 9.12
hereof.
"Subsidiary Guarantor" means each of the Company's Restricted
Subsidiaries that becomes a guarantor of the Securities in compliance with the
provisions of Section 9.12 or Section 12.1 hereof or otherwise executes a
supplemental indenture in which such Subsidiary agrees to be bound by the terms
of this Indenture and to guarantee on an unsubordinated basis the payment of
the Securities pursuant to the provisions of Article XII hereof.
"Transfer Restricted Securities" means the Registrable Securities
under the Registration Rights Agreement.
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was executed,
except as provided in Section 8.5 hereof.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, and its successors and assigns, until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company that
at the time of determination will be designated an Unrestricted Subsidiary by
the Board of Directors as provided below and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company as an Unrestricted Subsidiary so long as (i) neither the Company
nor any Restricted Subsidiary is directly or indirectly liable pursuant to the
terms of any Indebtedness of such Subsidiary, (ii) no default with respect to
any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity,
(iii) neither the Company nor any Restricted Subsidiary has made an Investment
in such Subsidiary unless such Investment was made pursuant to, and in
accordance with, Section 9.10 hereof (other than Investments of the type
described in clause (d) of the definition of "Permitted Investments"), and (iv)
such designation shall not result in the creation or imposition of any Lien on
any of the Properties of the Company or any Restricted Subsidiary (other than
any Permitted Lien or any Lien the creation or imposition of which shall have
been in compliance with Section 9.14 hereof); provided, however, that with
respect to clause (i), the Company or a Restricted Subsidiary may be liable for
Indebtedness of an Unrestricted Subsidiary if (A) such liability constituted a
Permitted Investment or a Restricted Payment permitted by Section 9.10 hereof,
in each case at the time of incurrence, or (B) the liability would be a
Permitted Investment at the time of designation of such Subsidiary as an
Unrestricted Subsidiary. Any such designation by the Board of Directors shall
be evidenced to the Trustee by filing a Board Resolution of the Company with
the Trustee giving effect to such designation. The Board of Directors may
designate any Unrestricted Subsidiary as a Restricted Subsidiary if,
immediately after giving effect to such designation, (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under
Section 9.11 hereof and (3) if any of the Properties of the Company or any of
its Restricted Subsidiaries would upon such designation become subject to any
Lien (other than a Permitted Lien), the creation or imposition of such Lien
shall have been in compliance with Section 9.14 hereof.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
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"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to vote in the election of the board of directors, managers or
trustees of any Person (irrespective of whether or not, at the time, Capital
Stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
to the extent (a) all of the Capital Stock in such Restricted Subsidiary, other
than any directors qualifying shares mandated by applicable law, is owned
directly or indirectly by the Company or (b) 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 in
order for such Restricted Subsidiary to transact business in such foreign
jurisdiction, provided, that the Company, directly or indirectly, owns the
remaining Capital Stock or ownership interest in such Restricted Subsidiary
and, by contract or otherwise, controls the management and business of such
Restricted Subsidiary and derives the economic benefits of ownership of such
Restricted Subsidiary to substantially the same extent as if such Restricted
Subsidiary were a wholly owned Subsidiary.
SECTION 1.2 Other Definitions.
Defined
Term in Section
---- ----------
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . 2.8(b)
"Change of Control Notice" . . . . . . . . . . . . . . . . . . 9.15(c)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . 9.15(a)
"Change of Control Purchase Date" . . . . . . . . . . . . . . . 9.15(c)
"Change of Control Purchase Price" . . . . . . . . . . . . . . 9.15(a)
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . 2.10
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 9.16(b)
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . 12.5
"Net Proceeds Deficiency" . . . . . . . . . . . . . . . . . . . 9.16(c)
"Net Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . 9.16(c)
"Net Proceeds Payment Date" . . . . . . . . . . . . . . . . . . 9.16(c)
"Offered Price" . . . . . . . . . . . . . . . . . . . . . . . . 9.16(c)
"Pari Passu Indebtedness Amount" . . . . . . . . . . . . . . . 9.16(c)
"Pari Passu Offer" . . . . . . . . . . . . . . . . . . . . . . 9.16(c)
"Payment Amount" . . . . . . . . . . . . . . . . . . . . . . . 9.16(b)
"Payment Blockage Notice" . . . . . . . . . . . . . . . . . . . 13.3(b)
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"Payment Blockage Period" . . . . . . . . . . . . . . . . . . 13.3(b)
"Purchase Notice" . . . . . . . . . . . . . . . . . . . . . . . 9.16(c)
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . 9.10(a)
"Security Register" . . . . . . . . . . . . . . . . . . . . . . 2.6
"Security Registrar" . . . . . . . . . . . . . . . . . . . . . 2.6
"Subsidiary Guarantor Non-payment Default" . . . . . . . . . . 12.9(b)
"Subsidiary Guarantor Payment Default" . . . . . . . . . . . . 12.9(a)
"Subsidiary Guarantor Payment Notice" . . . . . . . . . . . . . 12.9(b)
"Surviving Entity" . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
"Trigger Date" . . . . . . . . . . . . . . . . . . . . . . . . 9.16(c)
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . 11.4(a)
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities,
"indenture security holder" means a Holder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the Trustee, and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
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(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(d) unless the context otherwise requires, the word "or"
is not exclusive;
(e) the word "including" (and, with correlative meaning,
the word "include") means including, without limiting the generality of any
description preceding such word;
(f) provisions apply to successive events and
transactions; and
(g) references to agreements and other instruments
include subsequent amendments and waivers but only to the extent not prohibited
by this Indenture.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally.
The Definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution of such
Securities or notations of Subsidiary Guarantees, as the case may be.
Securities (including the notations thereon relating to the Subsidiary
Guarantees and the Trustees certificate of authentication) bought and sold in
reliance on Rule 144A shall be issued initially in the form of one or more
permanent Global Securities substantially in the form set forth in Exhibit A
attached hereto deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. Subject to the limitation set forth in Section 2.2, the principal
amount of the Global Securities may be increased or decreased from time to time
by adjustments made on the records of the Trustee as custodian for the
Depositary, as hereinafter provided.
Securities (including the notations thereon relating to any Subsidiary
Guarantees and the Trustees certificate of authentication) offered and sold
other than as described in the preceding paragraph shall be issued in the form
of Definitive Securities in registered form in substantially the form set forth
in Exhibit A.
The Securities, the notations thereon relating to any Subsidiary
Guarantees and the Trustee's certificate of authentication shall be in
substantially the forms set forth in Exhibit A attached hereto, with such
appropriate insertions, omissions, substitutions and other variations
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as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities or notations of Subsidiary Guarantees, as the case
may be, as evidenced by their execution of the Securities or notations of
Subsidiary Guarantees, as the case may be. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security. The Securities may also have set forth on
the reverse side thereof a form of assignment and forms to elect purchase by
the Company pursuant to Sections 9.15 and 9.16 hereof.
SECTION 2.2 Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
2.5, 2.7, 2.9, 8.6, 9.15, 9.16 or 10.8 hereof.
The Securities shall be known and designated as the "8 3/4% Series A
Senior Subordinated Notes due 2007" and the "8 3/4% Series B Senior
Subordinated Notes due 2007" of the Company. Their Stated Maturity shall be
May 15, 2007, and they shall bear interest at the rate of 8 3/4% per annum
from May 22, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semiannually on May 15 and
November 15 in each year, commencing November 15, 1997, and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in the City of New York; provided, however, interest may be
paid, at the option of the Company, by check mailed to the Persons entitled
thereto at their respective addresses as shown on the Security Register or,
upon application to the Trustee by any Holder of an aggregate principal amount
of Securities in excess of $500,000 not later than the applicable Regular
Record Date, by transfer to an account (such transfer to be made only to a
Holder of an aggregate principal amount of Securities in excess of $500,000)
maintained by such Holder with a bank in the City of New York. No transfer
will be made to any such account unless the Trustee has received written wire
instructions not less than 15 days prior to the relevant payment date.
The Securities shall be redeemable as provided in Article X hereof.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article XI hereof.
The Securities shall be guaranteed by the Subsidiary Guarantors as
provided in Article XII hereof.
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The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII hereof.
SECTION 2.3 Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company and,
if guaranteed by a Subsidiary Guarantor, having the notation of Subsidiary
Guarantees executed by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities with the notation of
Subsidiary Guarantees, if any, thereon as provided in this Indenture.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with Article VII
hereof, shall be consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of its Properties substantially as
an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other
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disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VII hereof, any of the Securities
authenticated or delivered prior to such consolidation, merger, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities executed in the name of
the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of
a successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 2.5 Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Securities in lieu of which they are issued and having
the notations of Subsidiary Guarantees, if any, thereon and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and notations of Subsidiary Guarantees may
determine, as conclusively evidenced by their execution of such Securities and
notations of Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause Definitive
Securities to be prepared without unreasonable delay. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 9.2
hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
Definitive Securities of authorized denominations having notations of
Subsidiary Guarantees, if any, thereon. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities.
SECTION 2.6 Security Register and Depositary.
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 9.2 hereof being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Security Register shall be
in written form or any
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other form capable of being converted into written form within a reasonable
time. At all reasonable times and during normal business hours, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as security registrar (the "Security Registrar") for the
purpose of registering Securities and transfers of Securities as herein
provided.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Security.
SECTION 2.7 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Securities Registrar with the
request:
(x) to register the transfer of the Definitive
Securities, or
(y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other
authorized denominations,
the Securities Registrar shall register the transfer or make the exchange as
requested if its requirement for such transactions are met; provided, however,
that the Definitive Securities presented or surrendered for registration of
transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder thereof or by his attorney, duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities
that are Definitive Securities, shall be accompanied by the following
additional information and documents, as applicable, upon which the
Securities Registrar may conclusively rely:
(A) if such Transfer Restricted
Securities are being delivered to the Registrar by a Holder
for registration in the name of such Holder, without transfer,
a certification from such Holder to that effect (in
substantially the form of Exhibit C hereto); or
(B) if such Transfer Restricted
Securities are being transferred (1) to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the
Securities Act or (2) pursuant to an exemption from
registration in accordance with Rule 144 under the Securities
Act (and based upon an opinion of counsel if the Company or
the Trustee so requests) or (3) pursuant to an effective
registration statement under
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the Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit C hereto); or
(C) if such Transfer Restricted
Securities are being transferred to an institutional
"accredited investor," within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the
Company or the Trustee so requests), a certification to that
effect from such Holder (in substantially the form of Exhibit
C hereto) and a certification from the applicable transferee
(in substantially the form of Exhibit D hereto); or
(D) if such Transfer Restricted
Securities are being transferred in reliance on another
exemption from the registration requirements of the Securities
Act (and based upon an opinion of counsel if the Company or
the Trustee so requests), a certification to that effect from
such Holder (in substantially the form of Exhibit C hereto).
(b) Restriction on Transfer of a Definitive Security for
a Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer
Restricted Security, certification, substantially in the form of
Exhibit C hereto, upon which the Trustee may conclusively rely, that
such Definitive Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a
Transfer Restricted Security, written instructions directing the
Trustee to make, or direct the Security Custodian to make, an
endorsement on the Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security;
then the Trustee shall cancel such Definitive Security in accordance with
Section 2.12 hereof and cause, or direct the Security Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Security Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If
no Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate a new Global Security in the appropriate principal
amount.
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(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(d) Transfer of a Beneficial Interest in a Global
Security for a Definitive Security.
(i) Any Person having a beneficial interest in a
Global Security may upon request exchange such beneficial interest for
a Definitive Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for
the Depositary, from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Global Security, and in the
case of a Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile), upon which the Trustee may conclusively rely:
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such Person
to that effect (in substantially the form of Exhibit C
hereto); or
(B) if such beneficial interest is being
transferred (1) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with Rule 144 under
the Securities Act (and based upon an opinion of counsel if
the Company or the Trustee so requests) or (3) pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit C hereto); or
(C) if such beneficial interest is being
transferred to an institutional "accredited investor," within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from
the registration requirements of the Securities Act (and based
upon an opinion of counsel if the Company or the Trustee so
requests), a certification to that effect from such transferor
(in substantially the form of Exhibit C hereto) and a
certification from the applicable transferee (in substantially
the form of Exhibit D hereto); or
(D) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act (and based
upon an opinion of counsel if the Company or the Trustee so
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requests), a certification to that effect from such transferor
(in substantially the form of Exhibit C hereto);
the Trustee or the Security Custodian, at the direction of the Trustee, shall,
in accordance with the standing instructions and procedures existing between
the Depositary and the Security Custodian, cause the aggregate principal amount
of Global Securities to be reduced accordingly and, following such reduction,
the Company shall execute and the Trustee shall authenticate and deliver to the
transferee a Definitive Security in the appropriate principal amount.
(ii) Definitive Securities issued in exchange for
a beneficial interest in a Global Security pursuant to this Section
2.7(d) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Securities to the
Persons in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.7), a Global
Security may not be transferred as a whole except 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.
(f) Authentication of Definitive Securities in Absence of
Depositary. If at any time:
(i) the Depositary for the Securities notifies
the Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Securities and a successor Depositary for
the Global Securities is not appointed by the Company within 90 days
after delivery of such notice;
(ii) an Event of Default has occurred and is
continuing and the Security Registrar has received a request from the
Depositary to issue Definitive Securities in lieu of all or a portion
of the Global Security (in which case the Company shall deliver
Definitive Securities within 30 days of such request); or
(iii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture,
then the Company will execute, and the Trustee will authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the principal
amount of the Global Securities, in exchange for such Global Securities and
registered in such names as the Depositary shall instruct the Trustee or the
Company in writing.
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(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii) immediately below, each Security certificate
evidencing the Global Securities and the Definitive Securities (and
all Securities issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DAY ON WHICH POGO PRODUCING COMPANY
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR")
THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS
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LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each Security certificate evidencing the Global Securities also shall bear the
paragraph referred to in the first footnote on page A-2 of the form of Security
attached hereto as Exhibit A.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule 144 under the
Securities Act or an effective registration statement under the
Securities Act:
(A) in the case of any Transfer
Restricted Security that is a Definitive Security, the
Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security that
does not bear the legend set forth in (i) above and rescind
any restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer
Restricted Security represented by a Global Security, such
Transfer Restricted Security shall not be required to bear the
legend set forth in (i) above if all other interests in such
Global Security have been or are concurrently being sold or
transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, but such Transfer Restricted Security shall
continue to be subject to the provisions of Section 2.7(c)
hereof; provided, however, that with respect to any request
for an exchange of a Transfer Restricted Security that is
represented by a Global Security for a Definitive Security
that does not bear a legend set forth in (i) above, which
request is made in reliance upon Rule 144 under the Securities
Act, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144
under the Securities Act (such certification to be
substantially in the form of Exhibit C hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.4
hereof, the Trustee shall authenticate Series B Securities in exchange
for Series A Securities accepted for exchange in the Exchange Offer,
which Series B Securities shall not bear the legend set forth in (i)
above, and the Registrar shall rescind any restriction on the transfer
of such Securities, in each case unless the Holder of such Series A
Securities is either (A) a broker-dealer, (B) a Person participating
in the distribution of the Series A Securities or (C) a Person who is
an affiliate (as defined in Rule 144 under the Securities Act) of the
Company. The Company shall identify to the Trustee such Holders of
the Securities in a written certification signed by an Officer of
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the Company and, absent certification from the Company to such effect,
the Trustee shall assume that there are no such Holders.
(h) Cancellation and/or Adjustment of Global Security.
At such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
canceled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Trustee or the Security Custodian, at the direction of the
Trustee to reflect such reduction.
(i) General Provisions with respect to Transfer and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Definitive Securities and Global Securities at the
Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange or redemption of
Securities (except as otherwise permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other
than such transfer tax or similar governmental charge payable upon
exchanges pursuant to the last paragraph of Section 2.4 or Sections
2.5, 8.6 or 10.8 hereof).
(iii) The Trustee shall authenticate Definitive
Securities and Global Securities in accordance with the provisions of
Section 2.4 hereof.
(iv) Notwithstanding any other provisions of this
Indenture to the contrary, the Company shall not be required to
register the transfer or exchange of a Security between a Regular
Record Date and the next succeeding Interest Payment Date.
(v) Neither the Company nor the Trustee will have
any responsibility or liability for any aspect of the records relating
to, or payments made on account of, Securities by the Depositary, or
for maintaining, supervising or reviewing any records of the
Depositary relating to such Securities. Neither the Company nor the
Trustee shall be liable for any delay by the related Global Security
Holder or the Depositary in identifying the beneficial owners of the
related Securities and each such Person may conclusively rely on, and
shall be protected in relying on, instructions from such Global
Security Holder or the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal
amounts, of the Securities to be issued).
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(vi) Neither the Trustee, the Security Registrar
nor the Company shall be required (A) to issue, register the transfer
of or exchange any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of
Securities selected for redemption under Section 10.4 hereof and
ending at the close of business on the day of such mailing of the
relevant notice of redemption, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(vii) All Securities and the Subsidiaries
Guarantees, if any, noted thereon issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of
the Company and the respective Subsidiary Guarantors, if any,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
(viii) Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Holder's Security in
violation of any provision of this Indenture and/or applicable federal
or state securities law.
(ix) The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 2.8 Additional Provisions for Global Securities.
(a) The Global Security initially shall be registered in
the name of the Depositary for such Global Security or the nominee of such
Depositary and be delivered to the Trustee as custodian for such Depositary.
(b) Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
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(c) The registered Holder of the Global Security may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.
SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute, any Subsidiary Guarantors shall execute the notations of
Subsidiary Guarantees, and upon Company Order the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, having the notations of Subsidiary Guarantees, if any, thereon bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the respective Subsidiary
Guarantors, if any, whether or not the mutilated, destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date
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for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 9.2 hereof.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the Holder on the Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Securities (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited shall be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date, and
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided for in Section 14.5 hereof, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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SECTION 2.11 Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, if any, the Security
Registrar, the Trustee and any agent of the Company, the Subsidiary Guarantors
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of (and premium, if any, on) and interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Subsidiary Guarantors, if any, the Security Registrar, the Trustee
or any agent of the Company, the Subsidiary Guarantors or the Trustee shall be
affected by notice to the contrary.
SECTION 2.12 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as permitted by this Indenture. All canceled Securities held by the
Trustee shall be delivered to the Company.
SECTION 2.13 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 2.14 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
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ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon a Company Request cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of Securities, as expressly provided for in this Indenture) as to all
Outstanding Securities, and the Trustee, at the expense of the Company, shall,
upon payment of all amounts due the Trustee under Section 5.6 hereof, execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been mutilated,
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9 hereof and (B) Securities for whose payment
money or United States governmental obligations of the type described
in clause (a) of the definition of Cash Equivalents has theretofore
been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust as provided in Section 9.3
hereof) have been delivered to the Trustee for cancellation, or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (ii)(A), (ii)(B) or (ii)(C) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be, together with
instructions from the Company irrevocably directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be;
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(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each satisfactory in form to the Trustee,
which, taken together, state that all conditions precedent herein relating to
the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.6 hereof and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (a)(i) of this Section, the obligations of the Trustee under Section 3.2
hereof and the last paragraph of Section 9.3 hereof shall survive.
SECTION 3.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 9.3 hereof,
all money deposited with the Trustee pursuant to Section 3.1 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE IV
REMEDIES
SECTION 4.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of the principal of or
premium, if any, on any of the Securities, whether such payment is due at
maturity, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx pursuant to a Change of Control
Offer or a Net Proceeds Offer, upon acceleration or otherwise; or
(b) default in the payment of any installment of interest
on any of the Securities, when it becomes due and payable, and the continuance
of such default for a period of 30 days; or
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(c) default in the performance or breach of the
provisions of Article VII hereof, the failure to make or consummate a Change of
Control Offer in accordance with Section 9.15 hereof or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
9.16 hereof; or
(d) the Company or any Subsidiary Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in the
Securities, any Subsidiary Guarantee or this Indenture (other than a default
specified in (a), (b) or (c) above) for a period of 45 days after written
notice of such failure requiring the Company to remedy the same shall have been
given (i) to the Company by the Trustee or (ii) to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the Securities
then outstanding; or
(e) the occurrence and continuation beyond any applicable
grace period of any default in the payment of the principal of (or premium, if
any, on) or interest on any Indebtedness of the Company (other than the
Securities or any Non-Recourse Indebtedness) or any Restricted Subsidiary for
money borrowed when due, or any other default causing acceleration of any
Indebtedness (other than Non-Recourse Indebtedness) of the Company or any
Restricted Subsidiary for money borrowed; provided, that the aggregate
principal amount of such Indebtedness shall exceed $12,000,000; provided
further, that if any such default is cured or waived or any such acceleration
rescinded, or such Indebtedness is repaid, within a period of 10 days from the
continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default
under this Indenture and any consequential acceleration of the Securities shall
be automatically rescinded, so long as such rescission does not conflict with
any judgment or decree; or
(f) the commencement of proceedings, or the taking of any
enforcement action (including by way of set-off), by any holder of at least
$12,000,000 in aggregate principal amount of Indebtedness (other than
Non-Recourse Indebtedness) of the Company or any Restricted Subsidiary, after a
default under such Indebtedness, to retain in satisfaction of such Indebtedness
or to collect or seize, dispose of or apply in satisfaction of such
Indebtedness, Property of the Company or any Restricted Subsidiary having a
Fair Market Value in excess of $12,000,000 individually or in the aggregate;
provided, that if any such proceedings or actions are terminated or rescinded,
or such Indebtedness is repaid, such Event of Default under this Indenture and
any consequential acceleration of the Securities shall be automatically
rescinded, so long as (i) such rescission does not conflict with any judgment
or decree and (ii) the holder of such Indebtedness shall not have applied any
such Property in satisfaction of such Indebtedness; or
(g) any Subsidiary Guarantee shall for any reason cease
to be, or be asserted by the Company or any Subsidiary Guarantor, as
applicable, not to be, in full force and effect, enforceable in accordance with
its terms (except pursuant to the release of any such Subsidiary Guarantee in
accordance with this Indenture); or
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(h) if (i) any material "accumulated funding deficiency"
(as defined in Section 302 of ERISA or Section 412 of the Code), shall exist
with respect to any PBGC Plan or Multiple Employer Plan (unless a waiver or
extension is obtained under Section 412(d) or (e) of the Code and Sections 303
and 304 of ERISA), if such accumulated funding deficiency would give rise to a
material liability of the Company, (ii) a Reportable Event shall occur with
respect to any PBGC Plan or Multiple Employer Plan, which Reportable Event is
likely to result in the termination of such PBGC Plan or Multiple Employer Plan
for purposes of Title IV of ERISA and to give rise to a material liability of
the Company, (iii) proceedings to have a trustee appointed shall commence, or a
trustee shall be appointed to terminate or administer a PBGC Plan or Multiple
Employer Plan, which proceeding is likely to result in the termination of such
PBGC Plan or Multiple Employer Plan and to give rise to a material liability of
the Company with respect to such termination, (iv) a notice of intent to
terminate a PBGC Plan or Multiple Employer Plan in a distress termination under
Section 4041(c) of ERISA is furnished to participants, (v) any Multiemployer
Plan is in reorganization or is insolvent and the circumstances are such that
such reorganization or insolvency will likely result in a material liability to
the Company, (vi) there is a complete or partial withdrawal from a
Multiemployer Plan under circumstances that would likely subject the Company to
material liability, or (vii) any event or condition described in (i) through
(vi) above (determined without regard to whether the event or condition taken
alone would or could result in a material liability) shall occur or exist with
respect to a PBGC Plan, Multiple Employer Plan or Multiemployer Plan which in
combination with one or more of any events described in (i) through (vi) above
(determined without regard to whether the event or condition taken alone would
or could result in a material liability) that has occurred or exists, would
likely subject the Company, any Subsidiary Guarantor or any other Restricted
Subsidiary to any material tax, penalty or other liability (for purposes of
this paragraph (i) the term "material" and "material liability" shall mean any
tax, penalty or liability in excess of $12,000,000); or
(i) final judgments or orders rendered against the
Company or any Restricted Subsidiary that are unsatisfied and that require the
payment in money, either individually or in an aggregate amount, that is more
than $12,000,000 over the coverage under applicable insurance policies and
either (i) commencement by any creditor of an enforcement proceeding upon such
judgment (other than a judgment that is stayed by reason of pending appeal or
otherwise) or (ii) the occurrence of a 60-day period during which a stay of
such judgment or order, by reason of pending appeal or otherwise, was not in
effect; or
(j) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Company or any
Material Restricted Subsidiary in an involuntary case or proceeding under the
Federal Bankruptcy Code or any other applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (ii) adjudging the Company
or any Material Restricted Subsidiary bankrupt or insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or composition of the
Company or a Material Restricted Subsidiary under the Federal Bankruptcy Code
or any other applicable federal or state law, or appointing under any such law
a custodian, receiver, liquidator, assignee, trustee, sequestrator
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or other similar official of the Company or any Material Restricted Subsidiary
or of a substantial part of their consolidated assets, or ordering the winding
up or liquidation of their affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(k) the commencement by the Company or any Material
Restricted Subsidiary of a voluntary case or proceeding under the Federal
Bankruptcy Code or any other applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or any other case or proceeding
to be adjudicated bankrupt or insolvent, or the consent by the Company or any
Material Restricted Subsidiary to the entry of a decree or order for relief in
respect thereof in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by the
Company or any Material Restricted Subsidiary of a petition or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it under any such law to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of any of the
Company or any Material Restricted Subsidiary or of any substantial part of
their consolidated assets, or the making by it of an assignment for the benefit
of creditors under any such law.
SECTION 4.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 4.1(j) or (k) hereof) shall occur and be continuing, the Trustee, by
written notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities, by notice to the Trustee and
the Company, may declare all unpaid principal of (premium, if any, on), and
accrued and unpaid interest on all of the Securities to be due and payable
immediately, upon which declaration all amounts payable in respect of the
Securities shall be immediately due and payable. If an Event of Default
specified in Section 4.1(j) or (k) occurs and is continuing, then the principal
of (premium, if any, on), and accrued and unpaid interest on all of the
Securities shall ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind such declaration and its
consequences if:
(a) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
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(i) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding
Securities,
(iii) all unpaid principal of (and premium, if any,
on) any Outstanding Securities which has become due otherwise than by
such declaration of acceleration, including any Securities required to
have been purchased on a Change of Control Date or Net Proceeds
Payment Date pursuant to a Change of Control Offer or a Net Proceeds
Offer, as applicable, and interest on such unpaid principal at the
rate borne by the Securities, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest and overdue principal at the
rate borne by the Securities which has become due otherwise than by
such declaration of acceleration (without duplication of any amount
deposited pursuant to clauses (ii) and (iii) above);
(b) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction; and
(c) all Events of Default, other than the nonpayment of
principal of (or premium, if any, on) and interest on Securities that has
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 4.13 hereof.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 4.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
Subject to Article XIII, the Company covenants that if
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days or
(b) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof or with respect
to any Security required to have been purchased by the Company on the Change of
Control Purchase Date or the Net Proceeds Payment Date pursuant to a Change of
Control Offer or a Net Proceeds Offer, as applicable, the Company will, upon
demand of the Trustee, pay to the Trustee for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue
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installment of interest at the rate borne by the Securities and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the Property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in any provision of the Securities,
this Indenture or the Registration Rights Agreement in aid of the exercise of
any power granted therein or herein, or to enforce any other proper remedy.
SECTION 4.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Securities or the Property of the Company, any
Subsidiary Guarantor or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company, any Subsidiary
Guarantor or such other obligor for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents and take any other
actions including participation as a full member of any creditor or other
committee as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding and
(b) to collect and receive any moneys or other Property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the
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Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 5.6 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or any Subsidiary Guarantees or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 4.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
or any Subsidiary Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and 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 Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 4.6 Application of Money Collected.
Subject to Sections 12.8, 12.9 and 12.10 and Article XIII, any money
collected by the Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Trustee and, in the case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
5.6 hereof;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Company.
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SECTION 4.7 Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount
of the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 4.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article XI
hereof) and in such Security of the principal of (and premium, if any, on) and
(subject to Section 2.10 hereof) interest on, such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
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SECTION 4.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereunder and all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 4.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 2.9 hereof, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 4.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 4.12 Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
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(c) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the Holders not
joining therein.
SECTION 4.13 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the outstanding Securities may on behalf of the Holders of all the
Securities waive any existing Default or Event of Default hereunder and its
consequences, except a Default or Event of Default:
(a) in respect of the payment of the principal of
(premium, if any, on), or interest on any Security; or
(b) in respect of a covenant or provision hereof which
under Article VIII hereof cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected thereby.
Upon any such waiver, such Default or Event of Default shall cease to
exist for every purpose under this Indenture, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 4.14 Waiver of Stay, Extension or Usury Laws.
The Company covenants, and each Subsidiary Guarantor shall covenant,
(to the extent that each may lawfully do so) that it will not at any time
insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, or usury law or other law, which would
prohibit or forgive the Company or any Subsidiary Guarantor from paying all or
any portion of the principal of (premium, if any, on) and/or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives, and each Subsidiary Guarantor shall expressly waive
all benefit or advantage of any such law, and the Company covenants and each
Subsidiary Guarantor shall covenant that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 4.15 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith
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of the claims or defenses made by the party litigant. This Section 4.15 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 4.8
hereof or a suit by Holders of more than 10% in principal amount of the then
Outstanding Securities.
ARTICLE V
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
SECTION 5.1 Notice of Defaults.
If a Default or Event of Default occurs and is known to the Trustee,
the Trustee shall mail to each Holder notice of the Default or Event of Default
within 60 days after the occurrence thereof in the manner and to the extent
provided in TIA Section 313(c), provided, however, that, except in the case of
a Default or Event of Default in the payment of the principal of (or premium,
if any, on) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers, of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders.
SECTION 5.2 Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its
selection, and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection
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in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the 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 any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(i) the Trustee shall not be deemed to know or otherwise
have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact a Default or Event of Default is received by a Responsible
Officer of the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
The Trustee shall not be required to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 5.3 Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities and the notations
of Subsidiary Guarantees thereon, except for the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the
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validity or sufficiency of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder,
and that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth herein. The Trustee shall not be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 5.4 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, any Subsidiary Guarantor or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company and any Subsidiary Guarantor with the same rights it would have if it
were not the Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 5.5 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company or any Subsidiary Guarantor.
SECTION 5.6 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such
compensation as shall be agreed in writing from time to time between the
Company and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel, except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence or
bad faith); and
(c) to indemnify the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, (i) arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the
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exercise or performance of any of its powers or duties hereunder or (ii) in
connection with enforcing this indemnification provision.
The obligations of the Company under this Section 5.6 to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or any other termination under any Insolvency or
Liquidation Proceeding. As security for the performance of such obligations of
the Company, the Trustee shall have a claim and lien prior to the Securities
upon all Property and funds held or collected by the Trustee as such, except
funds held in trust for payment of principal of (and premium, if any, on) or
interest on particular Securities. Such lien shall survive the satisfaction
and discharge of this Indenture or any other termination under any Insolvency
or Liquidation Proceeding.
When the Trustee incurs expenses or renders services after the
occurrence of a Default or an Event of Default specified in paragraphs (j) or
(k) of Section 4.1 of this Indenture, such expenses and the compensation for
such services are intended to constitute expenses of administration under any
Insolvency or Liquidation Proceeding.
SECTION 5.7 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 5.7, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee 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 5.8 Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
SECTION 5.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 5.10 hereof.
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(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 5.10 hereof shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company. If the instrument of
acceptance by a successor Trustee required by Section 5.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time
(i) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 5.7 hereof and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company, by a Board Resolution, may remove the
Trustee, or (B) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six
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months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
Such successorship may, but need not be, evidenced by a supplemental indenture.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 14.5 hereof. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 5.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of all amounts
due it under Section 5.6 hereof, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder. Upon request
of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture; provided, however, that the
right to adopt the certificate of authentication of any
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predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 5.12 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company or any such other obligor.
ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Subsidiary Guarantors, if any, the Security Registrar and
the Trustee that none of the Company, the Subsidiary Guarantors, the Security
Registrar or the Trustee, or any agent of either of them, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with TIA Section 312, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 6.2 Reports By Trustee.
Within 60 days after May 15 of each year commencing with May 15, 1998,
the Trustee shall transmit by mail to the Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 in
accordance with and to the extent required under TIA Section 313(a). The
Trustee shall also comply with TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each Trustee's report, at the time of its mailing to Holders
of Securities, shall be mailed to the Company and filed with the Commission and
each stock exchange, if any, on which the Securities are listed.
SECTION 6.3 Reports by Company.
The Company (and any Subsidiary Guarantor, if applicable) shall:
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(a) file with the Trustee, and provide to each Holder,
without cost to such Holder, within 15 days after the Company (and any
Subsidiary Guarantor, if applicable) is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company (and any Subsidiary Guarantor, if applicable) may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company (and any Subsidiary Guarantor, if applicable) is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company (and any Subsidiary Guarantor, if applicable) with
the conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(c) transmit by mail to all Holders, in the manner and to
the extent provided in TIA Section 313(c), within 30 days after the filing
thereof with Trustee, such summaries of any information, documents and reports
required to be filed by the Company (and any Subsidiary Guarantor, if
applicable) pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission. Delivery of such reports, information and documents 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 exclusively on Officers' Certificates).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 7.1 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in any single transaction or a series of
related transactions, merge or consolidate with or into any other Person, or
sell, assign, convey, transfer or lease or otherwise dispose of the Property of
the Company and its Restricted Subsidiaries substantially as an entirety on a
consolidated basis to any Person, and the Company shall not permit any
Restricted
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Subsidiary to enter into any transaction or series of related transactions if
such transaction or series of transactions would result in a sale, assignment,
conveyance, transfer, lease or other disposition of the Properties of the
Company and its Restricted Subsidiaries substantially as an entirety on a
consolidated basis to any Person, unless at the time and after giving affect
thereto:
(a) either (i) if the transaction or series of related
transactions is a merger or consolidation, the Company shall be the surviving
Person of such merger or consolidation, or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company or such
Restricted Subsidiary is merged or to which the Properties of the Company or
such Restricted Subsidiary, as the case may be, are sold, assigned, conveyed,
transferred, leased or otherwise disposed of (any such surviving Person or
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall, in either case, expressly
assume by a supplemental indenture to this Indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of the
Company for the due and punctual payment of the principal of (and premium, if
any, on) and interest on all the Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be performed
or observed, and this Indenture shall remain in full force and effect;
(b) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma basis (and
treating any Indebtedness not previously an obligation of the Company or any of
its Restricted Subsidiaries which becomes the obligation of the Company or any
of its Restricted Subsidiaries in connection with or as a result of such
transaction or series of transactions as having been incurred at the time of
such transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing;
(c) except in the case of the consolidation or merger of
any Restricted Subsidiary with or into the Company, immediately after giving
effect to such transaction or series of transactions on a pro forma basis, the
Consolidated Net Worth of the Company (or the Surviving Entity if the Company
is not the continuing obligor under this Indenture) is at least equal to the
Consolidated Net Worth of the Company immediately before such transaction or
series of transactions;
(d) except in the case of the consolidation or merger of
(i) any Restricted Subsidiary with or into the Company or any Wholly Owned
Restricted Subsidiary or (ii) the Company with or into any Person that has no
Indebtedness outstanding, immediately before and after giving effect to such
transaction or series of transactions on a pro forma basis (on the assumption
that the transaction or series of transactions occurred on the first day of the
period of four full fiscal quarters ending immediately prior to the
consummation of such transaction or series of transactions, with the
appropriate adjustments with respect to such transaction or series of
transactions being included in such pro forma calculation) the Company (or the
Surviving Entity if the Company is not the continuing obligor under this
Indenture) could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 9.11 hereof;
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(e) each Subsidiary Guarantor, unless it is the party to
the transactions or series of transactions described above, shall have by
supplemental indenture confirmed that its Subsidiary Guarantee shall apply to
such Person's obligations under this Indenture and the Securities;
(f) if any of the Properties of the Company or any
Restricted Subsidiary would upon such transaction or series of transactions
become subject to any Lien (other than a Permitted Lien), the creation or
imposition of such Lien shall have been in compliance with Section 9.14 hereof;
and
(g) the Company or such Person shall have delivered to
the Trustee (i) an Officers' Certificate in form and substance reasonably
acceptable to the Trustee, stating that such consolidation, merger, conveyance,
transfer, lease or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
complies with this Indenture and that all conditions precedent herein relating
to such transaction or transactions have been satisfied and (ii) an Opinion of
Counsel stating that the requirements of Section 7.1(a) hereof have been
complied with.
SECTION 7.2 Successor Substituted.
Upon any consolidation of the Company with or merger of the Company
into any other corporation or any sale, assignment, lease, conveyance, transfer
or other disposition substantially as an entirety on a consolidated basis of
the Properties of the Company to any Person in accordance with Section 7.1
hereof, the Surviving Entity formed by such consolidation or into which the
Company is merged or to which such sale, assignment, conveyance, transfer or
other disposition (other than by lease) is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein, and in the event of any such sale, assignment, lease,
conveyance, transfer or other disposition, the Company (which term shall for
this purpose mean the Person named as the "Company" in the first paragraph of
this Indenture or any Surviving Entity which shall theretofore become such in
the manner described in Section 7.1 hereof), except in the case of a lease,
shall be discharged of all obligations and covenants under this Indenture and
the Securities and the Company may be dissolved and liquidated and such
dissolution and liquidation shall not cause a Change of Control under clause
(e) of the definition thereof to occur unless the merger, or the sale,
assignment, lease, conveyance, transfer or other disposition substantially as
an entirety of the Properties of the Company to any Person otherwise results in
a Change of Control.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, any Subsidiary Guarantors, 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:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company contained herein and in the Securities; or
(b) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the requirements of
Sections 5.9 and 5.10 hereof; or
(e) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to qualify, or maintain the qualification of, the
Indenture under the TIA or to make any other provisions with respect to matters
or questions arising under this Indenture or the Registration Rights Agreement;
provided, that such action shall not adversely affect the interests of the
Holders; or
(f) to secure the Securities pursuant to the requirements
of Section 9.14 hereof or otherwise; or
(g) to add any Person as a Subsidiary Guarantor as
provided in Section 12.1 hereof to evidence the succession of another Person to
any Subsidiary Guarantor and the assumption by any such successor of the
covenants and agreements of such Subsidiary Guarantor contained herein, in the
Securities and in the Subsidiary Guarantee; or
(h) to release a Subsidiary Guarantor from its Subsidiary
Guarantee pursuant to Section 9.12 hereof; or
(i) to provide for uncertificated Securities in addition
to or in place of certificated Securities.
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SECTION 8.2 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, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, any Subsidiary Guarantors, 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 under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment of any Security, or change
the coin or currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce the percentage of aggregate principal amount
of the Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or certain
Defaults or Events of Default hereunder and their consequences provided for in
this Indenture; or
(c) modify any of the provisions of this Section or
Section 4.13 or 9.22 hereof, 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;
(d) modify Section 9.12 hereof or any provisions of this
Indenture relating to any Subsidiary Guarantees in a manner adverse to the
Holders thereof; or
(e) amend or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control,
or to make and consummate a Net Proceeds Offer with respect to any Asset Sale
or modify any of the provisions or definitions with respect thereto.
It shall not be necessary for any Act of the 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.
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SECTION 8.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 8.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 8.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 8.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company, with the notations of Subsidiary Guarantees thereon
executed by the Subsidiary Guarantors, if any, and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.
SECTION 8.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.2 hereof, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 14.5 hereof, setting forth in
general terms the substance of such supplemental indenture.
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ARTICLE IX
COVENANTS
SECTION 9.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders that
it will duly and punctually pay the principal of (and premium, if any, on) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture. The Company shall pay interest (including post-petition
interest in any proceeding under the Federal Bankruptcy Code or any similar
state bankruptcy law) on overdue principal, and premium, if any, at the rate
borne by the Securities to the extent lawful; and it shall pay interest
(including post-petition interest in any proceeding under the Federal
Bankruptcy Code or any similar state bankruptcy law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to
the extent lawful.
SECTION 9.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities, the Subsidiary Guarantees and this Indenture may be served.
The office of Fleet National Bank, c/o First Chicago, 00 Xxxx Xxxxxx, 0xx Xxxxx
-- Window Xx. 0, Xxx Xxxx, Xxx Xxxx 00000 shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the aforementioned office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of the City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in
the location of any such other office or agency.
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SECTION 9.3 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
shall, on or before each due date of the principal of (and premium, if any, on)
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before 11:00 A.M., New York City time, on each due
date of the principal of (and premium, if any, on), or interest on, any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company shall promptly notify
the Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any, on) or interest on Securities in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest on any Security and remaining unclaimed for two years or
such lesser period of time as may be required
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by applicable escheat laws after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the Borough of Manhattan,
the City of New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 9.4 Corporate Existence.
Except as permitted by Article VII hereof, Section 9.16 hereof or
other provisions of this Indenture, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such existence of its Restricted
Subsidiaries, right or franchise, if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 9.5 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or Property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, could by law become a Lien upon the Property of the
Company or any Restricted Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP.
SECTION 9.6 Maintenance of Properties.
The Company shall cause all material Properties owned by the Company
or any Restricted Subsidiary and used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted);
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the maintenance of any of such Properties if such
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discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders. Notwithstanding the
foregoing, nothing contained in this Section 9.6 shall limit or impair in any
way the right of the Company and its Restricted Subsidiaries to sell, divest
and otherwise to engage in transactions that are otherwise permitted by this
Indenture.
SECTION 9.7 Insurance.
The Company shall at all times keep all of its and its Restricted
Subsidiaries' Properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that Property of similar character is usually so insured by
corporations similarly situated and owning like Properties.
The Company may adopt such other plan or method of protection, in lieu
of or supplemental to insurance with insurers, whether by the establishment of
an insurance fund or reserve to be held and applied to make good losses from
casualties, or otherwise, conforming to the systems of self-insurance
maintained by corporations similarly situated and owning like Properties, as
may be determined by the Company.
SECTION 9.8 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company and within 45 days of the
end of each of the first, second and third quarters of each fiscal year of the
Company, in each case ending after the date hereof, an Officers' Certificate
stating that a review of the activities of the Company during the preceding
fiscal quarter or fiscal year, as applicable, has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge the Company is not in Default in
the performance or observance of any of the terms, provisions and conditions
hereof or, if a Default or Event of Default shall have occurred, describing all
such Defaults or Events of Default of which he may have knowledge and that to
the best of his knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Securities are prohibited or if such event has occurred, a description of
the event. Such Officers' Certificate shall comply with TIA Section 314(a)(4).
For purposes of this Section 9.8(a), such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
(b) The Company and any Subsidiary Guarantors shall, so
long as any of the Securities are outstanding, deliver to the Trustee forthwith
upon any Officer becoming aware of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company or any Subsidiary Guarantor proposes to take with respect
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thereto within 10 days after its becoming aware of the occurrence of such
Default or Event of Default.
SECTION 9.9 Reports.
The Company and any Subsidiary Guarantors shall file on a timely basis
with the Commission, to the extent such filings are accepted by the Commission
and whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that
the Company would be required to file if it were subject to Section 13 or 15(d)
of the Exchange Act). The Company (and the Subsidiary Guarantors, if
applicable) will also be required (a) to file with the Trustee, and provide to
each Holder of Securities, without cost to such Holder, copies of such reports
and documents within 15 days after the date on which the Company files such
reports and documents with the Commission or the date on which the Company (and
the Subsidiary Guarantors, if applicable) would be required to file such
reports and documents if the Company (and the Subsidiary Guarantors, if
applicable) were so required and (b) if filing such reports and documents with
the Commission is not accepted by the Commission or is prohibited under the
Exchange Act, to furnish at the Company's cost copies of such reports and
documents to any Holder of Securities promptly upon written request. The
Company is obligated to make available, upon request, to any Holder of
Securities the information required by Rule 144A(d)(4) under the Securities
Act, during any period in which the Company is not subject to Section 13 or
15(d) of the Exchange Act and, for so long as any Transfer Restricted
Securities remain outstanding, the Company shall furnish to all Holders and
prospective purchasers of the Securities designated by the Holders of Transfer
Restricted Securities, promptly upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) of the Securities Act. The Company
and each Subsidiary Guarantor also shall comply with the other provisions of
TIA Section 314(a).
SECTION 9.10 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, take any of the following
actions (unless such action constitutes a Permitted Investment):
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's Capital Stock
(other than dividends or distributions payable solely in shares of
Qualified Capital Stock of the Company, options, warrants or other
rights to purchase Qualified Capital Stock of the Company);
(ii) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company or any Affiliate
thereof (other than any Wholly Owned Restricted Subsidiary of the
Company) or any options, warrants or other rights to acquire such
Capital Stock; provided, however, that the Company may make any
payment of the applicable redemption price in connection with a
Qualified Redemption Transaction;
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(iii) make any principal payment on or repurchase,
redeem, defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, scheduled sinking fund payment or
maturity, any Pari Passu Indebtedness or Subordinated Indebtedness,
except in any case out of a Pari Passu Offer or a Net Proceeds
Deficiency pursuant to the provisions of Section 9.16 hereof and
except upon a Change of Control or similar event required by the
indenture or other agreement or instrument pursuant to which such Pari
Passu Indebtedness or Subordinated Indebtedness was issued, provided
the Company is then obligated to make a Change of Control Offer in
compliance with Section 9.15 hereof; provided, however, that the
Company may make any payment of the applicable redemption price in
connection with a Qualified Redemption Transaction;
(iv) declare or pay any dividend on, or make any
distribution to the holders of, any shares of Capital Stock of any
Restricted Subsidiary of the Company (other than to the Company or any
of its Wholly Owned Restricted Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Restricted Subsidiary (other than a Wholly Owned Restricted
Subsidiary) or any options, warrants or other rights to acquire any
such Capital Stock (other than with respect to any such Capital Stock
held by the Company or any Wholly Owned Restricted Subsidiary of the
Company);
(v) make any Investment; or
(vi) in connection with the acquisition of any
property or asset by the Company or its Restricted Subsidiaries after
the date of this Indenture, which property or asset would secure or be
subject to any Production Payment obligations of the Company or its
Restricted Subsidiaries, make any investment (of cash, property or
other assets) in such property or asset so acquired in addition to the
amount of Indebtedness (including Production Payment obligations)
incurred by the Company or its Restricted Subsidiaries in connection
with such acquisition;
(such payments or other actions described in (but not excluded from)
clauses (i) through (vi) are collectively referred to as "Restricted
Payments"), unless at the time of and after giving effect to the
proposed Restricted Payment (with the amount of any such Restricted
Payment, if other than cash, being the amount determined by the Board
of Directors, whose determination shall be conclusive and evidenced by
a Board Resolution), (1) no Default or Event of Default shall have
occurred and be continuing, (2) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
accordance with Section 9.11 hereof and (3) the aggregate amount of
all Restricted Payments declared or made after the date of this
Indenture shall not exceed the sum (without duplication) of the
following:
(I) 50% of the aggregate Consolidated Net Income
of the Company accrued on a cumulative basis during the
period beginning on the first
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day of the first month after the date of this Indenture and
ending on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed Restricted Payment
(or, if such aggregate cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss), plus
(II) the aggregate net cash proceeds received
after the date of this Indenture by the Company as capital
contributions to the Company (other than from any Restricted
Subsidiary), plus
(III) the aggregate net cash proceeds received
after the date of this Indenture by the Company from the
issuance or sale (other than to any of its Restricted
Subsidiaries) of shares of Qualified Capital Stock of the
Company or any options, warrants or rights to purchase such
shares of Qualified Capital Stock of the Company, plus
(IV) the aggregate net cash proceeds received
after the date of this Indenture by the Company (other than
from any of its Restricted Subsidiaries) upon the exercise
of any options, warrants or rights to purchase shares of
Qualified Capital Stock of the Company, plus
(V) the aggregate net cash proceeds received
after the date of this Indenture by the Company from the
issuance or sale (other than to any of its Restricted
Subsidiaries) of debt securities or shares of Redeemable
Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Company to the extent such
debt securities were originally sold for cash, together with
the aggregate cash received by the Company at the time of
such conversion or exchange, plus
(VI) to the extent not otherwise included in the
Company's Consolidated Net Income, the net reduction in
Investments in Affiliates and Unrestricted Subsidiaries
resulting from the payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or a
Restricted Subsidiary after the date of this Indenture from
any Affiliate or Unrestricted Subsidiary or from the
redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary (valued in each case as provided in the
definition of "Investment"), not to exceed in the case of
any Affiliate or Unrestricted Subsidiary the total amount of
Investments (other than Permitted Investments) in such
Affiliate or Unrestricted Subsidiary made by the Company and
its Restricted Subsidiaries in such Affiliate or
Unrestricted Subsidiary after the date of this Indenture,
plus
(VII) $15,000,000.
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(b) Notwithstanding paragraph (a) above, the Company and
its Restricted Subsidiaries may take the following actions so long as (in the
case of clauses (ii), (iii) and (iv) below) no Default or Event of Default
shall have occurred and be continuing:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at such declaration date
such declaration complied with the provisions of paragraph (a) above
(and such payment shall be deemed to have been paid on such date of
declaration for purposes of any calculation required by the provisions
of paragraph (a) above);
(ii) the repurchase, redemption or other
acquisition or retirement of any shares of any class of Capital Stock
of the Company or any Restricted Subsidiary, in exchange for, or out
of the aggregate net cash proceeds of, a substantially concurrent
issue and sale (other than to a Restricted Subsidiary) of shares of
Qualified Capital Stock of the Company;
(iii) the purchase, redemption, repayment,
defeasance or other acquisition or retirement for value of any
Subordinated Indebtedness (other than Redeemable Capital Stock) in
exchange for or out of the aggregate net cash proceeds of a
substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of shares of Qualified Capital Stock of the Company;
(iv) the purchase, redemption, repayment,
defeasance or other acquisition or retirement for value of
Subordinated Indebtedness (other than Redeemable Capital Stock) in
exchange for, or out of the aggregate net cash proceeds of, a
substantially concurrent incurrence (other than to a Restricted
Subsidiary) of Subordinated Indebtedness of the Company so long as (A)
the principal amount of such new Indebtedness does not exceed the
principal amount (or, if such Subordinated Indebtedness being
refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount as of the date of determination) of the
Subordinated Indebtedness being so purchased, redeemed, repaid,
defeased, acquired or retired, plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms
of the Subordinated Indebtedness refinanced or the amount of any
premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus the amount of fees and expenses of
the Company incurred in connection with such refinancing, (B) such new
Subordinated Indebtedness is subordinated to the Securities at least
to the same extent as such Subordinated Indebtedness so purchased,
redeemed, repaid, defeased, acquired or retired, (C) such new
Subordinated Indebtedness has an Average Life to Stated Maturity that
is longer than the Average Life to Stated Maturity of the Securities
and such new Subordinated Indebtedness has a Stated Maturity for its
final scheduled principal payment that is at least 91 days later than
the Stated Maturity for the final scheduled principal payment of the
Securities; and
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(v) repurchases, acquisitions or retirements of
shares of Qualified Capital Stock of the Company deemed to occur upon
the exercise of stock options or similar rights issued under employee
benefit plans of the Company if such shares represent all or a portion
of the exercise price or are surrendered in connection with satisfying
any Federal income tax obligation.
The actions described in clauses (i), (ii) and (iii) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3)
of paragraph (a) (provided, that any dividend paid pursuant to clause
(i) of this paragraph (b) shall reduce the amount that would otherwise
be available under clause (3) of paragraph (a) when declared, but not
also when subsequently paid pursuant to such clause (i)), and the
actions described in clauses (iv) and (v) of this paragraph (b) shall
be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount that
would otherwise be available for Restricted Payments under clause (3)
of paragraph (a).
(c) In computing Consolidated Net Income of the Company
under paragraph (a) above, (i) the Company shall use audited financial
statements for the portions of the relevant period for which audited financial
statements are available on the date of determination and unaudited financial
statements and other current financial data based on the books and records of
the Company for the remaining portion of such period and (ii) the Company shall
be permitted to rely in good faith on the financial statements and other
financial data derived from the books and records of the Company that are
available on the date of determination. If the Company makes a Restricted
Payment which, at the time of the making of such Restricted Payment, would in
the good faith determination of the Company be permitted under the requirements
of this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated Net
Income of the Company for any period.
SECTION 9.11 Limitation on Indebtedness.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, incur, issue, assume, guarantee or in any manner become directly or
indirectly liable for the payment of (collectively "incur") any Indebtedness
(including any Acquired Indebtedness), other than Permitted Indebtedness and
Permitted Subsidiary Indebtedness, as the case may be; provided, however, that
the Company and its Restricted Subsidiaries that are Subsidiary Guarantors may
incur additional Indebtedness if (i) the Company's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding the
incurrence of such Indebtedness (and for which financial statements are
available), taken as one period (at the time of such incurrence, after giving
pro forma effect to: (A) the incurrence of such Indebtedness and (if
applicable) the application of the net proceeds therefrom as if such
Indebtedness had been incurred and the application of such proceeds had
occurred at the beginning of such four-quarter period; (B) the
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incurrence, repayment or retirement of any other Indebtedness (including
Permitted Indebtedness and Permitted Subsidiary Indebtedness) by the Company or
its Restricted Subsidiaries since the first day of such four-quarter period
(including any other Indebtedness to be incurred concurrent with the incurrence
of such Indebtedness) as if such Indebtedness had been incurred, repaid or
retired at the beginning of such four-quarter period; and (C) notwithstanding
clause (d) of the definition of Consolidated Net Income, the acquisition
(whether by purchase, merger or otherwise) or disposition (whether by sale,
merger or otherwise) of any Person acquired or disposed of by the Company or
its Restricted Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition had occurred at the
beginning of such four-quarter period), would have been equal to at least 2.5
to 1.0 and (ii) no Default or Event of Default would occur or be continuing.
SECTION 9.12 Limitation on Non-Guarantor Restricted Subsidiaries.
(a) The Company shall not permit any Restricted
Subsidiary that is not a Subsidiary Guarantor to guarantee the payment of any
Indebtedness of the Company unless (i)(A) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Subsidiary Guarantee of the Securities by such Restricted
Subsidiary which Subsidiary Guarantee will be subordinated to Guarantor Senior
Indebtedness (but no other Indebtedness) to the same extent that the Securities
are subordinated to Senior Indebtedness and (B), with respect to any guarantee
of Subordinated Indebtedness by a Restricted Subsidiary, any such guarantee
shall be subordinated to such Restricted Subsidiary's Subsidiary Guarantee at
least to the same extent as such Subordinated Indebtedness is subordinated to
the Securities; (ii) such Restricted Subsidiary waives, and agrees not in any
manner whatsoever to claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Subsidiary Guarantee until such time as the
obligations guaranteed thereby are paid in full; and (iii) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that such Subsidiary Guarantee has been duly executed and authorized and
constitutes a valid, binding and enforceable obligation of such Restricted
Subsidiary, except insofar as enforcement thereof (A) may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all laws
relating to fraudulent transfers and fraudulent conveyances), (B) is subject to
general principles of equity and (C) any implied covenant of good faith or fair
dealing.
(b) Notwithstanding the foregoing and the other
provisions of this Indenture, each Subsidiary Guarantee shall provide by its
terms that it shall be automatically and unconditionally released and
discharged upon (i)(A) any sale, exchange or transfer of all the Capital Stock
in the applicable Subsidiary Guarantor owned by the Company and any Restricted
Subsidiary or (B) any sale, assignment, conveyance, transfer, lease or other
disposition of the properties and assets of such Subsidiary Guarantor
substantially as an entirety, in each case, in a single transaction or series
of related transactions to any Person that is not a Restricted Subsidiary
(provided, that such transaction or series of transactions is not prohibited by
the
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Indenture), (ii) the merger or consolidation of such Subsidiary Guarantor with
or into the Company or a Restricted Subsidiary (provided, that, in the case of
a merger into or consolidation with a Restricted Subsidiary that is not then a
Subsidiary Guarantor, the surviving Restricted Subsidiary assumes the
Subsidiary Guarantee and such transaction or series of transactions is not
prohibited by this Indenture) or (iii) the release or discharge of all
guarantees by such Subsidiary Guarantor of Indebtedness other than the Note
Obligations, except a discharge or release by or as a result of the payment of
such Indebtedness by such Subsidiary Guarantor pursuant to its Subsidiary
Guarantee.
SECTION 9.13 Limitation on Issuances and Sales of Restricted Subsidiary
Capital Stock.
The Company (a) shall not permit any Restricted Subsidiary to issue
any Preferred Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (b) shall not permit any Person (other than the Company and/or
one or more Wholly Owned Restricted Subsidiaries) to own any Capital Stock of
any Restricted Subsidiary; provided, however, that this covenant shall not
prohibit (i) the issuance and sale of all, but not less than all, of the issued
and outstanding Capital Stock of any Restricted Subsidiary owned by the Company
or any of its Restricted Subsidiaries in compliance with the other provisions
of this Indenture, (ii) the ownership by directors of directors' qualifying
shares, (iii) the ownership by any Person of Capital Stock of a Restricted
Subsidiary that was owned by a Person at the time such Restricted Subsidiary
became a Restricted Subsidiary or acquired by a Person in connection with the
formation of the Restricted Subsidiary (including, in each case, any Capital
Stock issued as a result of a stock split, a dividend of shares of Capital
Stock to holders of such Capital Stock, a recapitalization affecting such
Capital Stock or similar event) and (iv) the ownership by any Person of Capital
Stock of any Foreign Subsidiary so long as none of the Capital Stock of that
Subsidiary has been issued in a public offering.
SECTION 9.14 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume, affirm or suffer to exist or
become effective any Lien of any kind, except for Permitted Liens, on or with
respect to any of its Property (including any intercompany notes), whether
owned at the date of this Indenture or thereafter acquired, or any income,
profits or proceeds therefrom, or assign or otherwise convey any right to
receive income thereon, unless (a) in the case of any Lien securing
Subordinated Indebtedness, the Securities are secured by a Lien on such
Property or proceeds that is senior in priority to such Lien and (b) in the
case of any other Lien, the Securities are directly secured equally and ratably
with the obligation or liability secured by such Lien.
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SECTION 9.15 Change of Control.
(a) Upon the occurrence of a Change of Control, the
Company shall be obligated to make an offer to purchase (a "Change of Control
Offer") all of the then outstanding Securities, in whole or in part, from the
Holders of such Securities in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") equal to 101% of the aggregate
principal amount of such Securities, plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date (as defined below), in accordance with
the procedures set forth in paragraphs (b), (c) and (d) of this Section. The
Company shall, subject to the provisions described below, be required to
purchase all Securities properly tendered into the Change of Control Offer and
not withdrawn. The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer at the same purchase price, at the same times and otherwise in
substantial compliance with the requirements applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
(b) The Change of Control Offer is required to remain
open for at least 20 Business Days and until the close of business on the
Change of Control Purchase Date (as defined below).
(c) Not later than the 30th day following any Change of
Control, the Company shall give to the Trustee in the manner provided in
Section 14.4 and each Holder of the Securities in the manner provided in
Section 14.5, a notice (the "Change of Control Notice") stating:
(i) that a Change in Control has
occurred and that such Holder has the right to require the
Company to repurchase such Holder's Securities, or portion
thereof, at the Change of Control Purchase Price;
(ii) any information regarding such
Change of Control required to be furnished pursuant to Rule
14e-1 under the Exchange Act and any other securities laws
and regulations thereunder;
(iii) a purchase date (the "Change of
Control Purchase Date") which shall be on a Business Day and
no earlier than 30 days nor later than 75 days from the date
the Change of Control occurred;
(iv) that any Security, or portion
thereof, not tendered or accepted for payment will continue
to accrue interest;
(v) that unless the Company
defaults in depositing money with the Paying Agent in
accordance with clause (e) of this Section 9.15, or payment
is otherwise prevented, any Security, or portion thereof,
accepted
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for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control
Purchase Date; and
(vi) the instructions a Holder must
follow in order to have its Securities repurchased in
accordance with paragraph (e) of this Section.
(d) Holders electing to have Securities purchased will be
required to surrender such Securities to the Company at the address specified
in the Change of Control Notice on or prior to the Change of Control Purchase
Date. Holders will be entitled to withdraw their election if the Company
receives, not later than one Business Day prior to the Change of Control
Purchase Date, a facsimile transmission or letter setting forth the name of the
Holder, the certificate number(s) and principal amount of the Securities
delivered for purchase by the Holder as to which his election is to be
withdrawn and a statement that such Holder is withdrawing his election to have
such Securities purchased. Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(e) On the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant
to a Change of Control Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the
Securities so accepted. The Paying Agent shall promptly mail or deliver to
Holders of the Securities so accepted payment in an amount equal to the
purchase price, and the Company shall execute and the Trustee will promptly
authenticate and mail or make available for delivery to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
which any such Holder did not surrender for purchase. Any Securities not so
accepted will be promptly mailed or delivered to the Holder thereof. The
Company shall announce the results of a Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date. For purposes of this
Section 9.15, the Trustee will act as the Paying Agent.
SECTION 9.16 Limitation on Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the
Properties sold or otherwise disposed of pursuant to the Asset Sale and (ii) at
least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, in respect of such Asset Sale consists of cash,
Cash Equivalents and/or the assumption by the purchaser of liabilities of the
Company (other than liabilities of the Company that are by their terms
subordinated to the Securities) or any Restricted Subsidiary as a result of
which the Company and its remaining Restricted Subsidiaries are no longer
liable.
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(b) If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company may either (i) apply the Net Cash Proceeds
thereof to reduce Senior Indebtedness, to reduce Guarantor Senior Indebtedness
or to reduce Indebtedness of any Restricted Subsidiary incurred pursuant to
clause (m) of the definition of Permitted Subsidiary Indebtedness, provided, if
any such Senior Indebtedness, Guarantor Senior Indebtedness or Permitted
Subsidiary Indebtedness has been incurred under any revolving credit facility,
that the related commitment to lend or the amount available to be reborrowed
under such facility is also reduced, or (ii) invest all or any part of the Net
Cash Proceeds thereof, within 365 days after such Asset Sale, in Properties
which replace the Properties that were the subject of the Asset Sale or in
Properties that will be used in the business of the Company or its Restricted
Subsidiaries, as the case may be ("Replacement Assets"). The amount of such Net
Cash Proceeds not applied or invested as provided in this paragraph constitutes
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
or exceeds $15,000,000 (the "Trigger Date") the Company shall make an offer to
purchase, from all Holders of the Securities and any then outstanding Pari
Passu Indebtedness required to be repurchased or repaid on a permanent basis in
connection with an Asset Sale, an aggregate principal amount of Securities and
any then outstanding Pari Passu Indebtedness equal to such Excess Proceeds as
follows:
(i) (A) No later than the 30th day following the
Trigger Date, the Company shall give to the Trustee in the manner
provided in Section 14.4 hereof and each Holder of the Securities in
the manner provided in Section 14.5 hereof, notice (a "Purchase
Notice") offering to purchase (a "Net Proceeds Offer") from all
Holders of the Securities the maximum principal amount (expressed as a
multiple of $1,000) of Securities that may be purchased out of an
amount (the "Payment Amount") equal to the product of such Excess
Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities and the denominator of
which is the sum of the outstanding principal amount of the Securities
and such Pari Passu Indebtedness, if any (subject to proration in the
event such amount is less than the aggregate Offered Price (as defined
herein) of all Securities tendered), and (B) to the extent required by
such Pari Passu Indebtedness and provided there is a permanent
reduction in the principal amount of such Pari Passu Indebtedness, the
Company shall make an offer to purchase Pari Passu Indebtedness (a
"Pari Passu Offer") in an amount (the "Pari Passu Indebtedness
Amount") equal to the excess of the Excess Proceeds over the Payment
Amount.
(ii) The offer price for the Securities shall be
payable in cash in an amount equal to 100% of the principal amount of
the Securities tendered pursuant to a Net Proceeds Offer, plus accrued
and unpaid interest, if any, to the date such Net Proceeds Offer is
consummated (the "Offered Price"), in accordance with paragraph (e) of
this Section. To the extent that the aggregate Offered Price of the
Securities tendered pursuant to a Net Proceeds Offer is less than the
Payment Amount relating thereto or the
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aggregate amount of the Pari Passu Indebtedness that is purchased or
repaid pursuant to the Pari Passu Offer is less than the Pari Passu
Indebtedness Amount (such shortfall constituting a "Net Proceeds
Deficiency"), the Company may use such Net Proceeds Deficiency for
general corporate purposes, subject to the limitations of Section 9.10
hereof.
(iii) If the aggregate Offered Price of Securities
validly tendered and not withdrawn by Holders thereof exceeds the
Payment Amount, Securities to be purchased will be selected on a pro
rata basis. Upon completion of such Net Proceeds Offer and Pari Passu
Offer, the amount of Excess Proceeds shall be reset to zero.
(iv) The Purchase Notice shall set forth a
purchase date (the "Net Proceeds Payment Date"), which shall be on a
Business Day no earlier than 30 days nor later than 75 days from the
Trigger Date. The Purchase Notice shall also state (A) that a Trigger
Date with respect to one or more Asset Sales has occurred and that
such Holder has the right to require the Company to repurchase such
Holder's Securities at the Offered Price, subject to the limitations
described in the forgoing paragraph (iii), (B) any information
regarding such Net Proceeds Offer required to be furnished pursuant to
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder, (C) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue interest, (D)
that, unless the Company defaults in depositing money with the Paying
Agent in accordance with clause (e) of this Section 9.16, or payment
is otherwise prevented, any Security, or portion thereof, accepted for
payment pursuant to the Net Proceeds Offer shall cease to accrue
interest after the Net Proceeds Payment Date and (E) the instructions
a Holder must follow in order to have its Securities repurchased in
accordance with paragraph (e) of this Section.
(d) Holders electing to have Securities purchased will be
required to surrender such Securities to the Company at the address specified
in the Purchase Notice at least one Business Day prior to the Net Proceeds
Payment Date. Holders will be entitled to withdraw their election if the
Company receives, not later than one Business Day prior to the Net Proceeds
Payment Date, a facsimile transmission or letter setting forth the name of the
Holder, the certificate number(s) and principal amount of the Securities
delivered for purchase by the Holder as to which his election is to be
withdrawn and a statement that such Holder is withdrawing his election to have
such Securities purchased. Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(e) On the Net Proceeds Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to a
Net Proceeds Offer in an aggregate principal amount equal to the Payment Amount
or such lesser amount of Securities as has been tendered, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Securities or
portions thereof so tendered in an aggregate principal amount equal to the
Payment
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Amount or such lesser amount and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted. The Paying Agent shall promptly mail or
deliver to Holders of the Securities so accepted payment in an amount equal to
the purchase price, and the Company shall execute and the Trustee will promptly
authenticate and mail or make available for delivery to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
which any such Holder did not surrender for purchase. Any Securities not so
accepted will be promptly mailed or delivered to the Holder thereof. The
Company shall announce the results of a Net Proceeds Offer on or as soon as
practicable after the Net Proceeds Payment Date. For purposes of this Section
9.16, the Trustee will act as the Paying Agent.
SECTION 9.17 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or the rendering of any services) with, or for the
benefit of, any Affiliate of the Company other than a Restricted Subsidiary
(each, other than a Restricted Subsidiary, being an "Interested Person"),
unless (a) such transaction or series of transactions is on terms that are no
less favorable to the Company or such Restricted Subsidiary, as the case may
be, than those that would be available in a comparable arm's length transaction
with unrelated third parties who are not Interested Persons, or, in the event
no comparable transaction with an unrelated third party who is not an
Interested Person is available, on terms that are fair from a financial point
of view to the Company or such Restricted Subsidiary, as the case may be, (b)
with respect to any one transaction or series of related transactions involving
aggregate payments in excess of $10,000,000, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of
transactions complies with clause (a) above and such transaction or series of
transactions has been approved by the Board of Directors and (c) with respect
to any one transaction or series of related transactions involving aggregate
payments in excess of $20,000,000, the Officers' Certificate referred to in
clause (b) above also includes a certification that such transaction or series
of transactions has been approved by a majority of the Disinterested Directors
(either of the full Board of Directors or, in the case of action by a committee
thereof, of such committee) or, in the event there are no such Disinterested
Directors, that the Company has obtained a written opinion from an independent
nationally recognized investment banking firm or appraisal firm, in either case
specializing or having a specialty in the type and subject matter of the
transaction or series of related transactions at issue, which opinion shall be
to the effect set forth in clause (a) above; provided, however, that this
covenant will not restrict the Company from (i) paying reasonable and customary
regular compensation and fees to directors of the Company who are not employees
of the Company or any Restricted Subsidiary, (ii) paying dividends on, or
making distributions with respect to, shares of Capital Stock of the Company on
a pro rata basis to the extent permitted by Section 9.10 hereof, (iii)
Restricted Payments that are permitted by Section 9.10 hereof, (iv) making
loans or advances to officers, directors and employees of the Company or any
Restricted Subsidiary made in the ordinary course of business and consistent
with customary practices in the Oil and Gas Business in an aggregate amount not
to exceed
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$1,000,000 outstanding at any one time, (v) making any indemnification or
similar payment to any director or officer (A) in accordance with the corporate
charter or bylaws of the Company or any Restricted Subsidiary, (B) under any
agreement or (C) under applicable law and (vi) fulfilling obligations of the
Company or any Restricted Subsidiary under employee compensation and other
benefit arrangements entered into or provided for in the ordinary course of
business.
SECTION 9.18 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or
otherwise, or make any other distributions on or in respect of its Capital
Stock to the Company or any Restricted Subsidiary, (b) pay any Indebtedness
owed to the Company or any Restricted Subsidiary, (c) make an Investment in the
Company or any Restricted Subsidiary or (d) transfer any of its properties or
assets to the Company or any Restricted Subsidiary, except for such
encumbrances or restrictions (i) pursuant to any agreement in effect or entered
into on the date of this Indenture, (ii) pursuant to any agreement or other
instrument of a Person acquired by the Company or any Restricted Subsidiary in
existence at the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any other
Person, or the properties or assets of any other Person, other than the Person,
or the property or assets of the Person, so acquired, (iii) by reason of
customary non-assignment provisions in leases and licenses entered into in the
ordinary course of business, (iv) pursuant to capital leases and purchase money
obligations for property leased or acquired in the ordinary course of business
that impose restrictions of the nature described in clause (d) above on the
property so leased or acquired, (v) pursuant to any merger agreements, stock
purchase agreements, asset sale agreements and similar agreements limiting the
transfer of properties and assets pending consummation of the subject
transaction, (vi) pursuant to Permitted Liens which are customary limitations
on the transfer of collateral, (vii) pursuant to applicable law, (viii)
pursuant to agreements among holders of Capital Stock of any Restricted
Subsidiary of the Company requiring distributions in respect of such Capital
Stock to be made pro rata based on the percentage of ownership in and/or
contribution to such Restricted Subsidiary or (ix) existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
restrictions in the foregoing clauses (i) and (ii), provided, that the terms
and conditions of any such restrictions are not materially less favorable to
the Holders of the Securities than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or replaced.
SECTION 9.19 Limitation on Other Senior Subordinated Indebtedness.
The Company shall not incur, directly or indirectly, any Indebtedness
which is expressly subordinate or junior in right of payment in any respect to
Senior Indebtedness unless such
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Indebtedness ranks pari passu in right of payment with the Securities, or is
expressly subordinated in right of payment to the Securities.
SECTION 9.20 Limitation on Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in the conduct of any business other than the Oil and
Gas Business, except that the Company and the Restricted Subsidiaries may
engage in any business other than the Oil and Gas Business; provided, that the
consolidated assets of the Company and the Restricted Subsidiaries used in such
business shall not exceed, at any time, 10% of Adjusted Consolidated Net
Tangible Assets.
SECTION 9.21 Registration Rights Agreement.
The Company shall perform its obligations under the Registration
Rights Agreement and shall comply in all material respects with the terms and
conditions contained therein including, without limitation, the payment of
additional interest as described in Section 2(d) of the Registration Rights
Agreement.
SECTION 9.22 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 9.5 through 9.11, Sections
9.13 and 9.14 and Sections 9.17 through 9.20 hereof if, before or after the
time for such compliance, the Holders of at least a majority in principal
amount of the Outstanding Securities and the Subsidiary Guarantors, by Act of
such Holders and written agreement of the Subsidiary Guarantors, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE X
REDEMPTION OF SECURITIES
SECTION 10.1 Right of Redemption.
The Securities may be redeemed, at the option of the Company, in whole
or in part, at any time on or after May 15, 2002, upon not less than 30 or more
than 60 days' notice to each Holder of Securities to be redeemed, subject to
the conditions and at the Redemption Prices (expressed as percentages of
principal amount) specified in the form of Security, together with accrued and
unpaid interest, if any, to the Redemption Date.
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SECTION 10.2 Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 10.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 10.1 hereof shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 10.4 hereof. Any
election to redeem Securities shall be revocable until the Company gives a
notice of redemption pursuant to Section 10.5 hereof to the Holders of
Securities to be redeemed.
SECTION 10.4 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 30 days nor more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, pro rata, by lot or by any
other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal of
Securities; provided, however, that any such partial redemption shall be in
integral multiples of $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 10.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 14.5 hereof not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
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All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number) and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date payable as
provided in Section 10.7 hereof) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and that, unless the Company
shall default in the payment of the Redemption Price and any applicable accrued
interest, interest thereon will cease to accrue on and after said date; and
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Failure to give such
notice by mailing to any Holder of Securities or any defect therein shall not
affect the validity of any proceedings for the redemption of other Securities.
SECTION 10.6 Deposit of Redemption Price.
On or before 11:00 A.M., New York City time, on any Redemption Date,
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 9.3 hereof) an amount of money sufficient to pay the
Redemption Price of, and accrued and unpaid interest on, all the Securities
which are to be redeemed on such Redemption Date.
SECTION 10.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued and unpaid interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued and unpaid interest, if any, to the
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Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 2.10 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION 10.8 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for such purpose pursuant to
Section 9.2 hereof (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal amount of the Security so
surrendered.
ARTICLE XI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.1 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 11.2 or Section 11.3
hereof be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article XI.
SECTION 11.2 Defeasance and Discharge.
Upon the Company's exercise under Section 11.1 hereof of the option
applicable to this Section 11.2, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities on
the date the conditions set forth in Section 11.4 hereof are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance
means that the Company and the Subsidiary Guarantors shall be deemed (a) to
have paid and discharged their respective obligations under the Outstanding
Securities; provided, however, that the Securities shall continue to be deemed
to be "Outstanding" for purposes of Section 11.5 hereof and the other Sections
of this Indenture referred to in clauses (i) and (ii) below, and (b) to have
satisfied all their other obligations under such Securities and this Indenture
insofar as such
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Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i)
the rights of Holders of Outstanding Securities to receive, solely from the
trust fund described in Section 11.4 hereof and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any, on) and
interest on such Securities when such payments are due (or at such time as the
Securities would be subject to redemption at the option of the Company in
accordance with this Indenture), (ii) the respective obligations of the Company
and any Subsidiary Guarantors under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 4.8,
5.6, 5.9, 5.10, 9.1, 9.2, 9.3, 9.4, 12.1 (to the extent it relates to the
foregoing Sections and Article XI hereof), 12.4 and 12.5 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and
(iv) the obligations of the Company and any Subsidiary Guarantors under this
Article XI. Subject to compliance with this Article XI, the Company may
exercise its option under this Section 11.2 notwithstanding the prior exercise
of its option under Section 11.3 hereof with respect to the Securities.
SECTION 11.3 Covenant Defeasance.
Upon the Company's exercise under Section 11.1 hereof of the option
applicable to this Section 11.3, the Company shall be released from its
obligations under any covenant contained in Article VII and in Sections 9.6
through 9.20 hereof with respect to the Outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Sections 4.1(c) or 4.1(d) hereof, but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 11.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
11.2 or Section 11.3 hereof to the Outstanding Securities:
(a) The Company or any Subsidiary Guarantor shall
irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 5.7 hereof who shall
agree to comply with the provisions of this Article XI applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such
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Securities, (i) cash in U.S. Dollars in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, the principal
of (and premium, if any, on) and interest on the Outstanding Securities on the
Stated Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment of interest; provided, that the Trustee shall
have been irrevocably instructed in writing by the Company to apply such money
or the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 10.3 hereof, a notice of its election to
redeem all of the Outstanding Securities at a future date in accordance with
Article X hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
For this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided,
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit.
(c) Such legal defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest under this Indenture or
the Trust Indenture Act with respect to any securities of the Company.
(d) Such legal defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a default under any other
material agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which it is bound, as evidenced to the Trustee in an
Officers' Certificate delivered to the Trustee concurrently with such deposit.
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(e) In the case of an election under Section 11.2 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this Indenture
there has been a change in the applicable Federal income tax laws; in either
case providing that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such legal defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such legal defeasance had not occurred (it being understood that (A) such
Opinion of Counsel shall also state that such ruling or applicable law is
consistent with the conclusions reached in such Opinion of Counsel and (B) the
Trustee shall be under no obligation to investigate the basis of correctness of
such ruling).
(f) In the case of an election under Section 11.3 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal defeasance under
Section 11.2 hereof or the covenant defeasance under Section 11.3 (as the case
may be) have been complied with and that no violation under agreements
governing any other outstanding Indebtedness would result therefrom.
SECTION 11.5 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 9.3 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 11.5, the "Trustee") pursuant to Section 11.4 hereof
in respect of the Outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 11.4 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
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Anything in this Article XI to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 11.4 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or
covenant defeasance, as applicable, in accordance with this Article.
SECTION 11.6 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 11.5 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Subsidiary Guarantors' obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 11.2 or 11.3 hereof, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 11.5 hereof; provided, however,
that if the Company or any Subsidiary Guarantor makes any payment of principal
of (or premium, if any, on) or interest on any Security following the
reinstatement of its obligations, the Company or such Subsidiary Guarantor
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE XII
GUARANTEES
SECTION 12.1 Unconditional Guarantee.
Each Restricted Subsidiary that hereafter becomes a Subsidiary
Guarantor shall unconditionally, jointly and severally, guarantee (each such
guarantee to be referred to herein as a "Subsidiary Guarantee," with all such
guarantees being referred to herein as the "Subsidiary Guarantees") to each
Holder of Securities authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the full and prompt performance of the
Company's obligations under this Indenture and the Securities and that:
(a) the principal of (or premium, if any, on) and
interest on the Securities will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Securities, if any, to the extent lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
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(b) in case of any extension of time of payment or
renewal of any Securities or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise;
subject, however, in the case of clauses (a) and (b) above, to the limitations
set forth in Section 12.4 hereof.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary Guarantors will
be jointly and severally obligated to pay the same immediately. The
obligations of each Subsidiary Guarantor hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor shall waive diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and shall covenant that its Subsidiary Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture and in the Subsidiary Guarantee.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Subsidiary Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Holder, the Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. No Subsidiary
Guarantor shall be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed by the Subsidiary Guarantee
until payment in full of all obligations guaranteed thereby. Each Subsidiary
Guarantor shall further agree that, as between each Subsidiary Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed by the Subsidiary Guarantee may be
accelerated as provided in Article IV hereof for the purposes of the Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed by the Subsidiary
Guarantee, and (ii) in the event of any acceleration of such obligations as
provided in Article IV hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary Guarantor
for the purpose of the Subsidiary Guarantee.
SECTION 12.2 Subsidiary Guarantors May Consolidate, etc. on Certain
Terms.
(a) Except as set forth in Articles VII and IX hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the Company
or another Subsidiary Guarantor or shall prevent any sale
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or conveyance of the assets of a Subsidiary Guarantor substantially as an
entirety to the Company or another Subsidiary Guarantor.
(b) Except as set forth in Articles VII and IX hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into any Person
or Persons other than the Company or a Subsidiary Guarantor (whether or not
affiliated with the Subsidiary Guarantor), or successive consolidations or
mergers in which a Subsidiary Guarantor or its successor or successors shall be
a party or parties, or shall prevent any sale or conveyance of the Properties
of a Subsidiary Guarantor substantially as an entirety, to a Person other than
the Company or another Subsidiary Guarantor (whether or not Affiliated with the
Subsidiary Guarantor) authorized to acquire and operate the same; provided,
however, that, subject to Sections 12.2(a) and 12.3 hereof, (A) immediately
after such transaction, and giving effect thereto, no Default or Event of
Default shall have occurred as a result of such transaction and be continuing
and (B) each Subsidiary Guarantor shall covenant and agree that, upon any such
consolidation, merger, sale or conveyance, such Subsidiary Guarantor's
Subsidiary Guarantee set forth in this Article XII and in a notation to the
Securities, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by such Subsidiary
Guarantor, shall be expressly assumed (in the event that the Subsidiary
Guarantor is not the surviving Person in the merger), by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
such Person formed by such consolidation, or into which the Subsidiary
Guarantor shall have merged, or by the Person that shall have acquired such
Property (except to the extent the following Section 12.3 would result in the
release of such Subsidiary Guarantee in which case such surviving Person does
not have to execute any such supplemental indenture). In the case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture executed and delivered to the
Trustee and satisfactory in form to the Trustee of the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor.
SECTION 12.3 Release of a Subsidiary Guarantor.
The Subsidiary Guarantee of any Restricted Subsidiary shall be
released upon the terms and subject to the conditions set forth in Section 9.12
(b) hereof. Each Subsidiary Guarantor that is designated as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture shall be
released from all of its Subsidiary Guarantee and related obligations set forth
in this Indenture for so long as it remains an Unrestricted Subsidiary. The
Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a Company Request accompanied by an Officers' Certificate and an
Opinion of Counsel certifying that such sale or other disposition was made by
the Company in accordance with the provisions of this Indenture. Any
Subsidiary Guarantor not so released remains liable for the full amount of
principal of (and premium, if any, on) and interest on the Securities as
provided in this Article XII.
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SECTION 12.4 Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor shall confirm, and by its acceptance hereof
each Holder hereby confirms, that it is the intention of all such parties that
the Guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee
not constitute a fraudulent transfer or conveyance for purposes of any federal
or state law. To effectuate the foregoing intention, the Holders hereby
irrevocably agree, and each Subsidiary Guarantor shall irrevocably agree, that
the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
shall be limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities (including, but not limited to,
Guarantor Senior Indebtedness) of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 12.5 hereof,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. This Section 12.4 is for the benefit of the creditors of
each Subsidiary Guarantor.
SECTION 12.5 Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors shall agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor (if
any) in a pro rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Subsidiary Guarantor's
obligations with respect to its Subsidiary Guarantee.
SECTION 12.6 Execution and Delivery of Notation of Subsidiary Guarantee.
To evidence the Subsidiary Guarantee set forth in Section 12.1 hereof,
the Company shall cause each Subsidiary Guarantor to execute the notation of
Subsidiary Guarantee in substantially the form set forth in Exhibit B attached
hereto to be endorsed on each Security ordered to be authenticated and
delivered by the Trustee, and shall cause this Indenture or a supplemental
indenture to be executed on behalf of each Subsidiary Guarantor by its
President or one of its Vice Presidents and attested to by one of its
Secretaries or Assistant Secretaries. Each Subsidiary Guarantor shall agree
that its Subsidiary Guarantee set forth in Section 12.1 hereof shall remain in
full force and effect notwithstanding any failure to endorse on each Security a
notation of such Subsidiary Guarantee. Each such notation of Subsidiary
Guarantee shall be signed on behalf of each Subsidiary Guarantor by two
Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to
such notation of Subsidiary Guarantee prior to the authentication of the
Security on which it is endorsed, and the
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delivery of such Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors. Such signatures upon
the notation of Subsidiary Guarantee may be by manual or facsimile signature of
such Officers and may be imprinted or otherwise reproduced on the Subsidiary
Guarantee, and in case any such Officer who shall have signed the notation of
Subsidiary Guarantee shall cease to be such Officer before the Security on
which such notation of Subsidiary Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the notation of Subsidiary Guarantee had not
ceased to be such Officer of the Subsidiary Guarantor.
SECTION 12.7 Severability.
In case any provision of the Subsidiary Guarantee shall be invalid,
illegal or unenforceable, that portion of such provision that is not invalid,
illegal or unenforceable shall remain in effect, and the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 12.8 Subsidiary Guarantees Subordinated to Guarantor Senior
Indebtedness.
Each Subsidiary Guarantor shall covenant and agree, and each Holder of
a Security, by his acceptance of the Subsidiary Guarantees, covenants and
agrees, for the benefit of the holders, from time to time, of Guarantor Senior
Indebtedness, that the payments by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee are subordinated and subject in right of payment, to the
extent and in the manner provided in this Article XII, to the prior payment in
full in cash or Cash Equivalents of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed or guaranteed; provided, however, that
the Subsidiary Guarantees of the Subsidiary Guarantors, the Indebtedness
represented thereby and the payment of the principal of (and premium, if any,
on) and the interest on the Securities pursuant to the Subsidiary Guarantees in
all respects shall rank pari passu with, or prior to, all existing and future
unsecured indebtedness (including, without limitation, Indebtedness) of the
Subsidiary Guarantors that is subordinated to the Guarantor Senior
Indebtedness.
This Article XII shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Guarantor Senior Indebtedness, and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness, and such holders are made
obligees hereunder and any of them may enforce such provisions.
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SECTION 12.9 Subsidiary Guarantors Not to Make Payments with Respect to
Subsidiary Guarantees in Certain Circumstances.
(a) No payment or distribution of any Property of any
Subsidiary Guarantor of any kind or character (other than Permitted Guarantor
Junior Securities) may be made by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee upon the happening of any default in respect of the
payment or required prepayment of any of its Guarantor Senior Indebtedness when
the same becomes due and payable (a "Subsidiary Guarantor Payment Default"),
unless and until such Subsidiary Guarantor Payment Default shall have been
cured or waived in writing or shall have ceased to exist or such Guarantor
Senior Indebtedness shall have been paid in full or otherwise discharged, after
which such Subsidiary Guarantor shall resume making any and all required
payments in respect of its Subsidiary Guarantee, including any missed payments.
(b) Upon the happening of any event (other than a
Subsidiary Guarantor Payment Default) that entitles one or more Persons to
accelerate the maturity of any Designated Guarantor Senior Indebtedness (a
"Subsidiary Guarantor Non-payment Default"), and receipt by the applicable
Subsidiary Guarantor and a Responsible Officer of the Trustee, on behalf of the
Trustee, of written notice thereof from one or more of the holders of such
Designated Guarantor Senior Indebtedness or their representative (a "Subsidiary
Guarantor Payment Notice"), then, unless and until such Subsidiary Guarantor
Non-payment Default shall have been cured or waived in writing or shall have
ceased to exist or such Designated Guarantor Senior Indebtedness is paid in
full or otherwise discharged or the holders (or a representative of the
holders) of such Designated Guarantor Senior Indebtedness give their written
approval, no payment or distribution shall be made by such Subsidiary Guarantor
in respect of its Subsidiary Guarantee (other than Permitted Guarantor Junior
Securities); provided, however, that these provisions will not prevent the
making of any payment for more than 179 days after a Subsidiary Guarantor
Payment Notice shall have been given after which, subject to Section 12.9(a),
such Subsidiary Guarantor will resume making any and all required payments in
respect of its Subsidiary Guarantee, including any missed payments.
Notwithstanding any other provision of this Indenture, only one Subsidiary
Guarantor Payment Notice shall be given with respect to any Subsidiary
Guarantee within any 360 consecutive day period. No Subsidiary Guarantor
Non-payment Default with respect to Designated Guarantor Senior Indebtedness
that existed or was continuing on the date of any Subsidiary Guarantor Payment
Notice with respect to the Designated Guarantor Senior Indebtedness initiating
such Subsidiary Guarantor Payment Notice shall be, or can be, made the basis
for the commencement of a subsequent Subsidiary Guarantor Payment Notice with
respect to such Subsidiary Guarantee, whether or not within a period of 360
consecutive days, unless such default shall have been cured or waived for a
period of not less than 90 consecutive days (it being acknowledged that any
subsequent event, or any breach of any financial covenant for a period
commencing after the date of commencement of such Subsidiary Guarantor Payment
Notice, that, in either case, would give rise to a Subsidiary Guarantor
Non-payment Default pursuant to any provision under which a Subsidiary
Guarantor Non-payment Default previously existed or was continuing shall
constitute a new Subsidiary Guarantor Non-payment Default for this purpose;
provided, that, in the case of a breach of a
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particular financial covenant, such Subsidiary Guarantor shall have been in
compliance for at least one full 90 consecutive day period commencing after the
date of commencement of such Subsidiary Guarantor Payment Notice). In no event
shall a Subsidiary Guarantor Payment Notice extend beyond 179 days from the
date of its receipt and there must be a 181 consecutive day period in any 360
consecutive day period during which no Subsidiary Guarantor Payment Notice is
in effect with respect to such Subsidiary Guarantee.
(c) In the event that, notwithstanding the foregoing, a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 12.9, then and in such event such payment
shall be paid over and delivered forthwith to the Company. In the event that a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee and a Responsible Officer of the Trustee, on behalf of
the Trustee, shall receive written notice of a Subsidiary Guarantor Payment
Default or a Subsidiary Guarantor Non-payment Default from one or more of the
Holders of Guarantor Senior Indebtedness (or their representative) prior to
making any payment to Holders in respect of the Subsidiary Guarantee and prior
to 11:00 a.m. Eastern Time on the date which is two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose, such payments shall be paid over by the Trustee and delivered
forthwith to the Company. Each Subsidiary Guarantor shall give prompt written
notice to the Trustee of any default under any of its Guarantor Senior
Indebtedness or under any agreement pursuant to which its Guarantor Senior
Indebtedness may have been issued.
SECTION 12.10 Subsidiary Guarantees Subordinated to Prior Payment of All
Guarantor Senior Indebtedness upon Dissolution, etc.
Upon any distribution of Properties of any Subsidiary Guarantor or
payment on behalf of a Subsidiary Guarantor in the event of any Insolvency or
Liquidation Proceeding with respect to such Subsidiary Guarantor:
(a) the holders of such Subsidiary Guarantor's Guarantor
Senior Indebtedness shall be entitled to receive payment in full in cash or
Cash Equivalents of such Guarantor Senior Indebtedness (including interest
after the commencement of any such proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not a claim for such interest would
be allowed in such a proceeding) before the Holders are entitled to receive any
direct or indirect payment or distribution of any kind or character, whether in
cash, property or securities (other than Permitted Guarantor Junior
Securities), on account of any payment in respect of such Subsidiary
Guarantor's Subsidiary Guarantee;
(b) any direct or indirect payment or distribution of
Properties of such Subsidiary Guarantor of any kind or character, whether in
cash, property or securities (other than a payment or distribution in the form
of Permitted Guarantor Junior Securities), by set-off or otherwise, to which
the Holders or the Trustee, on behalf of the Holders, would be entitled except
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for the provisions of this Article XII, shall be paid by the Subsidiary
Guarantor or by any liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of such Guarantor
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Guarantor Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of such
Guarantor Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or Cash Equivalents of all such
Guarantor Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness;
(c) in the event that, notwithstanding the foregoing
provisions of this Section 12.10, any direct or indirect payment or
distribution of Properties of such Subsidiary Guarantor of any kind or
character, whether in cash, property or securities (other than a payment or
distribution in the form of Permitted Guarantor Junior Securities), shall be
received by the Trustee or the Holders before all such Guarantor Senior
Indebtedness is paid in full or otherwise discharged, such Properties shall be
received and held in trust for and shall be paid over to the holders of such
Guarantor Senior Indebtedness remaining unpaid or their representatives, for
application to the payment of such Guarantor Senior Indebtedness until all such
Guarantor Senior Indebtedness shall have been paid or provided for in full in
cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness;
(d) to the extent any payment of or distribution in
respect of Guarantor Senior Indebtedness (whether by or on behalf of the
Company or 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 to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance, fraudulent transfer 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 Guarantor Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payments had not occurred; and
(e) to the extent that the obligation to repay any
Guarantor Senior Indebtedness is declared to be fraudulent, invalid or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent
conveyance, fraudulent transfer or similar law, then the obligation so declared
fraudulent, invalid or otherwise set aside (and all other amounts that would
come due with respect thereto had such obligation not been so affected) shall
be deemed to be reinstated and outstanding as Guarantor Senior Indebtedness for
all purposes hereof as if such declaration, invalidity or setting aside had not
occurred.
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The Company or a Subsidiary Guarantor shall give prompt written notice
to a Responsible Officer of the Trustee, on behalf of the Trustee, of the
occurrence of any Insolvency or Liquidation Proceeding with respect to such
Subsidiary Guarantor.
SECTION 12.11 Holders to be Subrogated to Rights of Holders of Guarantor
Senior Indebtedness.
After the payment in full in cash or Cash Equivalents of all Guarantor
Senior Indebtedness of a Subsidiary Guarantor, the Holders shall be subrogated
(equally and ratably with the holders of all other Indebtedness of such
Subsidiary Guarantor which by its express terms is subordinated to such
Guarantor Senior Indebtedness to substantially the same extent as such
Subsidiary Guarantee is so subordinated and which is entitled to like rights of
subrogation as a result of payments made to the holders of such Guarantor
Senior Indebtedness) to the rights of the holders of such Guarantor Senior
Indebtedness to receive payments or distributions of cash, property and
securities of such Subsidiary Guarantor applicable to such Guarantor Senior
Indebtedness until all amounts owing on the Securities shall be paid in full in
cash or Cash Equivalents, and for the purpose of such subrogation no payments
or distributions to the holders of such Guarantor Senior Indebtedness by or on
behalf of such Subsidiary Guarantor or by or on behalf of the Holders by virtue
of this Article XII which otherwise would have been made to the Holders shall,
as between such Subsidiary Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by such Subsidiary Guarantor to or on account of
such Guarantor Senior Indebtedness, it being understood that the subordination
provisions of this Article XII are, and are intended solely for, the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Guarantor Senior Indebtedness, on the other hand.
SECTION 12.12 Obligations of the Subsidiary Guarantors Unconditional.
Nothing contained in this Article XII or elsewhere in this Indenture
or in any Security is intended to or shall impair, as between Subsidiary
Guarantors and the Holders, the obligation of the Subsidiary Guarantors under
the Subsidiary Guarantees, or is intended to or shall affect the relative
rights of the Holders and creditors of the Subsidiary Guarantors, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon Default under this
Indenture subject to the rights, if any, under this Article XII of the holders
of Guarantor Senior Indebtedness in respect of cash, property or securities of
any Subsidiary Guarantor received upon the exercise of any such remedy. Upon
any distribution of Properties of a Subsidiary Guarantor referred to in this
Article XII, the Trustee, subject to the provisions of Section 5.2 hereof, and
the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of a trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, or agent or other person
making any distribution to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution,
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the holders of the related Guarantor 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 XII.
SECTION 12.13 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts (other than the existence of a Payment Default or a
Payment Blockage Period) that would prohibit the making of any payment to or by
the Trustee, unless a Responsible Officer of the Trustee, on behalf of the
Trustee, shall have received at the Corporate Trust Office written notice
thereof from a Subsidiary Guarantor or from one or more holders of Guarantor
Senior Indebtedness or Designated Guarantor Senior Indebtedness, in the case of
a Subsidiary Guarantor Non-payment Default, or from any representative thereof;
and, prior to the receipt of any such written notice, the Trustee, subject to
TIA Sections 315(a) through 315(d), shall be entitled to assume conclusively
that no such facts exist. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Guarantor Senior Indebtedness or Designated Guarantor Senior
Indebtedness, in the case of a Subsidiary Guarantor Non-payment Default (or a
representative on behalf of such holder), to establish that such notice has
been given by a holder of Guarantor Senior Indebtedness or Designated Guarantor
Senior Indebtedness, in the case of a Subsidiary Guarantor Non-payment
Default, or a representative on behalf of any such holder or holders.
SECTION 12.14 Application by Trustee of Money Deposited with it.
Except as provided in Article XIV, any deposit of money by a
Subsidiary Guarantor with the Trustee or any Paying Agent (whether or not in
trust) for any payment in respect of the related Subsidiary Guarantee shall be
subject to the provisions of Sections 12.8, 12.9, 12.10 and 12.11 hereof except
that, if a Payment Default does not exist, a Payment Blockage Period is not in
effect and if prior to 11:00 a.m. Eastern time on the date which is one
Business Day prior to the date on which by the terms of this Indenture any such
money may become payable for any purpose, the Trustee or, in the case of any
such deposit of money with a Paying Agent, the Paying Agent shall not have
received with respect to such money the notice provided for in Section 12.13
hereof, then the Trustee or such Paying Agent, as the case may be, shall have
full power and authority to receive such money and to apply the same to the
purpose for which it was received, and shall not be affected by any notice to
the contrary which may be received by it on or after 11:00 a.m., Eastern time,
one Business Day prior to such payment date. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Guarantor Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Guarantor Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article XII,
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and if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness but shall have only such
obligations to such holders as are expressly set forth in this Article XII.
SECTION 12.15 Subordination Rights Not Impaired by Acts or Omissions of
Subsidiary Guarantors or Holders of Guarantor Senior
Indebtedness.
No right of any present or future holders of any Guarantor Senior
Indebtedness of a Subsidiary Guarantor to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of such Subsidiary Guarantor or by any act or
failure to act by any such holder, or by any noncompliance by such Subsidiary
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the preceding paragraph
of this Section, the holders of Guarantor Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination or other
benefits provided in this Article, or the obligations hereunder of the Holders
of the Securities to the holders of Guarantor Senior Indebtedness, do any one
or more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew, exchange, amend, increase or alter,
Guarantor Senior Indebtedness or the term of any instrument evidencing the same
or any agreement under which Guarantor Senior Indebtedness is outstanding or
any liability of any obligor thereon (unless such change, extension or
alteration results in such Indebtedness no longer being Guarantor Senior
Indebtedness as defined in this Indenture); (b) sell, exchange, release or
otherwise deal with any Property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (c) settle or compromise any Guarantor Senior
Indebtedness or any liability of any obligor thereon or release any Person
liable in any manner for the collection of Guarantor Senior Indebtedness; and
(d) exercise or refrain from exercising any rights against the Company and any
other Person.
SECTION 12.16 Holders Authorize Trustee to Effectuate Subordination of
Subsidiary Guarantees.
Each Holder, by his acceptance thereof, authorizes and expressly
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee as his attorney-in-fact for such purpose, including, in
the event of any Insolvency or Liquidation Proceeding with respect to any
Subsidiary Guarantor, the immediate filing of a claim for the unpaid balance of
his Securities
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pursuant to the related Subsidiary Guarantee in the form required in said
proceedings and the causing of said claim to be approved.
SECTION 12.17 Right of Trustee to Hold Guarantor Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article XII in respect of any Guarantor Senior Indebtedness at any time held by
it to the same extent as any other holder of Guarantor Senior Indebtedness, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 12.18 Article XII Not to Prevent Events of Default.
The failure to make a payment on account of the Subsidiary Guarantees
by reason of any provision in this Article XII shall not be construed as
preventing the occurrence of an Event of Default under this Indenture.
SECTION 12.19 Payment.
For purposes of this Article XII, a payment with respect to any
Subsidiary Guarantee or with respect to principal of or interest on any
Security or any Subsidiary Guarantee shall include, without limitation, payment
of principal of and interest on any Security, any depositing of funds under
Article IV hereof, any payment on account of any repurchase or redemption of
any Security and any payment or recovery on any claim (whether for rescission
or damages and whether based on contract, tort, duty imposed by law, or any
other theory of liability) relating to or arising out of the offer, sale or
purchase of any Security.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1 Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article XIII, the Indebtedness
represented by the Securities and the payment of and distributions of or with
respect to the Note Obligations are hereby expressly made subordinate and
subject in right of payment as provided in this Article XIII to the prior
payment in full in cash or Cash Equivalents of all amounts payable under all
existing and future Senior Indebtedness which includes, without limitation, all
Credit Agreement Obligations of the Company.
This Article XIII shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become Holders of, or continue to hold
Senior Indebtedness; and such
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provisions are made for the benefit of the holders of Senior Indebtedness; and
the holders of Senior Indebtedness are made obligees hereunder and they or each
of them may enforce such provisions.
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of an Insolvency or Liquidation Proceeding with respect
to the Company:
(i) the holders of all Senior Indebtedness shall
be entitled to receive payment in full in cash or Cash Equivalents of
all Senior Indebtedness (including interest after the commencement of
such proceeding at the rate specified in the applicable Senior
Indebtedness, whether or not a claim for such interest would be
allowed in such proceeding) before the Holders of the Securities are
entitled to receive any direct or indirect payment or distribution
whether in cash, property or securities (excluding Permitted Junior
Securities of the Company) on account of the Note Obligations;
(ii) any direct or indirect payment or
distribution of Properties of the Company of any kind or character,
whether in cash, property or securities (excluding Permitted Junior
Securities of the Company), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the provisions of
this Article XIII shall be paid by the liquidating trustee or agent or
other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full
in cash or Cash Equivalents of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness;
(iii) in the event that, notwithstanding the
foregoing provisions of this Section 13.2, the Trustee or the Holder
of any Security shall have received any payment or distribution of
Properties of the Company of any kind or character, whether in cash,
property or securities, by set off or otherwise, in respect of any
Note Obligations before all Senior Indebtedness is paid or provided
for in full in cash or Cash Equivalents, then and in such event such
payment or distribution (excluding Permitted Junior Securities of the
Company) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other person making payment or distribution of assets of the
Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash or Cash Equivalents, after giving effect
to any concurrent payment or distribution to or for the holders of
Senior Indebtedness;
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(iv) to the extent any payment of or distribution
in respect of Senior Indebtedness (whether by or on behalf of the
Company or 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 to any
receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance, fraudulent transfer 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 payments had not occurred; and
(v) to the extent that the obligation to repay
any Senior Indebtedness is declared to be fraudulent, invalid or
otherwise set aside under any bankruptcy, insolvency, receivership,
fraudulent conveyance, fraudulent transfer or similar law, then the
obligation so declared fraudulent, invalid or otherwise set aside (and
all other amounts that would come due with respect thereto had such
obligation not been so affected) shall be deemed to be reinstated and
outstanding as Senior Indebtedness for all purposes hereof as if such
declaration, invalidity or setting aside had not occurred.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its Properties substantially as
an entirety to another corporation upon the terms and conditions set forth in
Article VII hereof shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of this Article if the
corporation formed by such consolidation or the surviving entity of such merger
or the corporation which acquires by conveyance, transfer or lease such
Properties substantially as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in such Article VII hereof to the extent applicable.
SECTION 13.3 Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 13.2 hereof shall be applicable, upon
the occurrence of a Payment Default, no direct or indirect payment or
distribution of any Property of the Company of any kind or character shall be
made by or on behalf of the Company on account of the Note Obligations or on
account of the purchase or redemption or other acquisition of any Note
Obligations unless and until such Payment Default shall have been cured or
waived or shall have ceased to exist or such Designated Senior Indebtedness
shall have been discharged or paid in full in cash or Cash Equivalents, after
which, subject to Section 13.2 hereof (if applicable), the Company shall resume
making any and all required payments in respect of the Securities and the other
Note Obligations, including any missed payments.
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(b) Unless Section 13.2 hereof shall be applicable, upon
(i) the occurrence of a Non-payment Default and (ii) receipt by the Trustee
from a Senior Representative of written notice (a "Payment Blockage Notice") of
such occurrence stating that such notice is a Payment Blockage Notice pursuant
to this Section 13.3(b) of this Indenture, no payment or distribution of any
Property of the Company of any kind or character shall be made by or on behalf
of the Company on account of any Note Obligations or on account of the purchase
or redemption or other acquisition of Note Obligations for a period ("Payment
Blockage Period") commencing on the date of receipt by the Trustee of such
notice unless and until the earliest to occur of the following events (subject
to any blockage of payments that may then be in effect under Section 13.2
hereof or subsection (a) of this Section 13.3 hereof) (A) 179 days shall have
elapsed since receipt of such written notice by the Trustee, (B) the date, as
set forth in a written notice to the Company or the Trustee from the Senior
Representative initiating such Payment Blockage Period, on which such
Non-payment Default shall have been cured or waived or shall have ceased to
exist (provided, that no other Payment Default or Non-payment Default has
occurred and is then continuing after giving effect to such cure or waiver),
(C) the date on which such Designated Senior Indebtedness shall have been
discharged or paid in full in cash or Cash Equivalents and (D) the date on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from the Senior Representative initiating such
Payment Blockage Period, after which, subject to Sections 13.2 and 13.3(a)
hereof (if applicable), the Company shall promptly resume making any and all
required payments in respect of the Note Obligations, including any missed
payments. Notwithstanding any other provision of this Indenture, only one
Payment Blockage Period may be commenced within any 360 consecutive day period.
No Non-payment Default with respect to Designated Senior Indebtedness that
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or can be, made the basis for the
commencement of a second Payment Blockage Period, whether or not within a
period of 360 consecutive days, unless such default shall have been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent event, or any breach of any financial covenant for a period
commencing after the date of commencement of such Payment Blockage Period,
that, in either case, would give rise to a Non-payment Default pursuant to any
provision under which a Non-payment Default previously existed or was
continuing shall constitute a new Non-payment Default for this purpose;
provided, however, that, in the case of a breach of a particular financial
covenant, the Company shall have been in compliance for at least one full 90
consecutive day period commencing after the date of commencement of such
Payment Blockage Period). In no event shall a Payment Blockage Period extend
beyond 179 days from the date of the receipt of the notice referred to in
clause (ii) hereof and there must be a 181 consecutive day period in any 360
consecutive day period during which no Payment Blockage Period is in effect
pursuant to this Section 13.3(b).
(c) In the event that, notwithstanding the foregoing,
the Trustee or the Holder of any Security shall have received any payment or
distribution prohibited by the foregoing provisions of this Section 13.3, then
and in such event such payment or distribution shall be paid
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over and delivered forthwith to the Senior Representatives or as a court of
competent jurisdiction shall direct for application to the payment of any due
and unpaid Senior Indebtedness, to the extent necessary to pay all such due and
unpaid Senior Indebtedness in cash or Cash Equivalents, after giving effect to
any concurrent payment to or for the holders of Senior Indebtedness.
SECTION 13.4 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, notwithstanding
any other provisions of this Indenture, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article XIII, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall mistakenly (but not as a result
of willful misconduct or gross negligence of the Trustee) pay over or deliver
to Holders, the Company or any other Person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XIII
or otherwise.
SECTION 13.5 Subrogation to Rights of Holders of Senior Indebtedness.
Upon the payment in full of cash or Cash Equivalents of all Senior
Indebtedness, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to Senior Indebtedness to substantially the same
extent as the Securities are so subordinated and which is entitled to like
rights of subrogation as a result of the payments made to the holders of Senior
Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of, premium, if any, and
interest on the Securities shall be paid in full in cash or Cash Equivalents.
For purposes of such subrogation, no payments or distributions to the holders
of Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of
this Article XIII, and no payments over pursuant to the provisions of this
Article XIII to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be payment
or distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article XIII shall have been
applied, pursuant to the provisions of this Article XIII, to the payment of all
amounts payable under the Senior Indebtedness of the Company and such payments
or distributions received by such holders of such Senior Indebtedness shall be
in excess of the amount sufficient to pay all amounts payable under or in
respect of such Senior Indebtedness in full in cash or Cash Equivalents, then
and in such case the Holders shall be entitled to receive the amount of such
excess from the Company upon and to the extent of any return of such excess by
the holders of such Senior Indebtedness.
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SECTION 13.6 Provisions Solely To Define Relative Rights.
The provisions of this Article XIII are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article XIII or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of the Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon a Default or an Event of Default under this Indenture,
subject to the rights, if any, under this Article XIII of the holders of Senior
Indebtedness.
The failure of the Company to make a payment on account of any Note
Obligations by reason of any provision of this Article XIII shall not be
construed as preventing the occurrence of a Default or an Event of Default
hereunder.
SECTION 13.7 Trustee To Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIII and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time
to file such a claim, the holders of Senior Indebtedness, or any Senior
Representative, may file such a claim on behalf of Holders of the Securities.
SECTION 13.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
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(b) Without limiting the generality of subsection (a) of
this Section 13.8, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article XIII or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(i) 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 any
liability of any obligor thereon; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) settle or compromise any Senior Indebtedness or any
liability of any obligor thereon or release any Person liable in any manner for
the collection or payment of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person; provided,
however, that in no event shall any such actions limit the right of the Holders
of the Securities to take any action to accelerate the maturity of the
Securities pursuant to Article IV hereof or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Indenture.
SECTION 13.9 Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact (other than the existence of a Payment Default or a Payment
Blockage Period) known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article XIII or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
(other than the existence of a Payment Default or a Payment Blockage Period)
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until a Responsible Officer of the Trustee, on
behalf of the Trustee, shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of this Section 13.9, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if a
Payment Default does not exist, a Payment Blockage Period is not in effect and
the Trustee shall not have received the notice provided for in this Section
13.9 at least one Business Day prior to the date upon which by the terms hereof
any money may become payable for any purpose under this Indenture (including,
without limitation, the payment of the principal of, premium, if any, or
interest on any Security), then, anything herein contained to the contrary
notwithstanding but without limiting the rights and remedies of the holders of
Senior Indebtedness or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within one Business Day
prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Trustee shall have received an
Officers' Certificate to such effect.
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(b) Subject to TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a written notice to
a Responsible Officer of the Trustee, on behalf of the Trustee, by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XIII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article XIII, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.10 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee, subject to TIA Sections 315(a) through
315(d), and the Holders, shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereof, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XIII.
SECTION 13.11 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article XIII shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 5.6 hereof.
SECTION 13.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XIII shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such
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Paying Agent were named in this Article XIII in addition to or in place of the
Trustee; provided, however, that Section 13.11 hereof shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 13.13 No Suspension of Remedies.
Nothing contained in this Article XIII shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article IV hereof or to pursue any
rights or remedies hereunder or under applicable law, subject to the rights, if
any, under this Article XIII of the holders, from time to time, of Senior
Indebtedness.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Compliance Certificates and Opinions.
Upon any application or request by the Company and/or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company and/or such Subsidiary Guarantor, as the case may be,
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act or this Indenture. Each such certificate and
each such opinion shall be in the form of an Officers' Certificate or an
Opinion of Counsel, as applicable, and shall comply with the requirements of
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 14.1
and the statements required by this Section 14.1 shall comply in all respects
with TIA Sections 314(c) and (e).
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SECTION 14.2 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel may be based, insofar as it relates to
factual matters, upon an Officers' Certificate of an Officer or Officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 14.3 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the
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execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership, principal amount and serial numbers of
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided, that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 14.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing and delivered in person or mailed by
certified or registered mail (return receipt requested) to the Trustee at its
Corporate Trust Office; or
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(b) the Company or any Subsidiary Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and delivered in
person or mailed by certified or registered mail (return receipt requested) to
the Company addressed to it or a Subsidiary Guarantor, as applicable, at the
Company's principal office located at 0 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000-0000, or at any other address otherwise furnished in writing to the
Trustee by the Company.
SECTION 14.5 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 14.6 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 14.7 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not. All agreements of the Trustee in this Indenture
shall bind its successor.
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SECTION 14.8 Separability Clause.
In case any provision in this Indenture or in the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefore
against any party hereto.
SECTION 14.9 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, the Holders, the holders
of Senior Indebtedness, the holders of Guarantor Senior Indebtedness and, to
the extent set forth in Section 12.4 hereof, creditors of Subsidiary
Guarantors) any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 14.10 Governing Law; Trust Indenture Act Controls.
(a) THIS INDENTURE, THE SUBSIDIARY GUARANTEES, IF ANY,
AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS. THE COMPANY IRREVOCABLY SUBMITS AND WILL CAUSE EACH SUBSIDIARY GUARANTOR
TO IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR A SUBSIDIARY GUARANTEE, AND THE COMPANY
IRREVOCABLY AGREES AND WILL CAUSE EACH SUBSIDIARY GUARANTOR TO IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED BY ANY SUCH COURT.
(b) This Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 and 318, inclusive, of the
Trust Indenture Act, or conflicts with any provision (an "incorporated
provision") required by or deemed to be included in this Indenture by operation
of such Trust Indenture Act sections, such imposed duties or incorporated
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
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SECTION 14.11 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities or
any Subsidiary Guarantees) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or at the Stated Maturity or Maturity; provided, that no
additional interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be,
by reason of such delay.
SECTION 14.12 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder, by accepting any of
the Securities, waives and releases all such liability to the extent permitted
by applicable law.
SECTION 14.13 Duplicate Originals.
The parties may sign any number of copies or counterparts of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 14.14 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ISSUER:
POGO PRODUCING COMPANY
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: VICE PRESIDENT-FINANCE AND
TREASURER
------------------------------
TRUSTEE:
FLEET NATIONAL BANK
as Trustee
By: /s/ XXXXXX X. XXXX, XX.
--------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
-------------------------------
Title: Vice President
------------------------------
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EXHIBIT A
FORM OF SECURITY
POGO PRODUCING COMPANY
8 3/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2007
[FORM OF FACE]
No. _____ $__________
Cusip No. [Series A: 730 448 AF4]*
[Series B: __________]
Pogo Producing Company, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________ or registered assigns the principal sum of
_______________ Dollars on May 15, 2007, at the office or agency of the Company
referred to below, and to pay interest thereon, commencing on November 15, 1997
and continuing semiannually thereafter, on May 15 and November 15 of each
year, from May 22, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 8 3/4% per annum,
until the principal hereof is paid or duly provided for, and (to the extent
lawful) to pay on demand, interest on any overdue interest at the rate borne by
the Securities from the date on which such overdue interest becomes payable to
the date payment of such interest has been made or duly provided for. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the May 1 or November 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and such defaulted interest, and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Securities, may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. Interest on the Securities shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
--------------------------------
* So long as the restrictive legend is included on a Definitive
Security, a CUSIP number is not needed for a Definitive Security
transferred to an institutional accredited investor (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933).
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The principal of (and premium, if any, on) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in the City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; provided, however, at the option
of the Company, interest may be paid (i) by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register, or (ii) with respect to any Holder owning Securities in the aggregate
principal amount of $500,000 or more, by wire transfer to an account maintained
by the Holder located in the City of New York, as specified in a written notice
to the Trustee, received prior to the relevant Regular Record Date, by any such
Holder requesting payment by wire transfer and specifying the account to which
transfer is requested.
[Unless and until it is exchanged in whole or in part for Securities in
definitive form, this 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. The Depository Trust Company shall act as the Depositary until a
successor shall be appointed by the Company and the Registrar. Unless this
certificate is presented by an authorized representative of The Depository
Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), 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 may be requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]*
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DAY ON WHICH POGO PRODUCING COMPANY
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER
--------------------------
*This paragraph should be included only if the Security is issued in
global form.
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THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT IS ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR") THAT IS
ACQUIRING SUCH SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT
TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
POGO PRODUCING COMPANY
[SEAL]
By:
-------------------------------
Name:
Title:
Attest:
------------------------------
Secretary
Dated:
-----------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Fleet National Bank, as Trustee, Certifies that this is one of the 8 3/4%
Series [A/B] Senior Subordinated Notes due 2007 referred to in the
within-mentioned Indenture.
FLEET NATIONAL BANK
By:
--------------------------------
Authorized Signatory
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FORM OF REVERSE OF SECURITY
POGO PRODUCING COMPANY
8 3/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2007
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 3/4% [Series A/B] Senior Subordinated Notes due
2007 (herein called the "Securities"), limited (except as otherwise provided in
the Indenture referred to below) in aggregate principal amount to $100,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of May 15, 1997, between the Company and Fleet National Bank, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Indebtedness evidenced by the Securities is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) and this Security is issued subject to such provisions. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee as his
attorney-in-fact for such purpose.
The Securities are subject to redemption at the option of the Company,
in whole or in part, at any time on or after May 15, 2002, upon not less than
30 or more than 60 days notice at the following Redemption Prices (expressed as
percentages of principal amount) set forth below, if redeemed during the
12-month period beginning on May 15 of the years indicated below:
YEAR PRICE
---- -----
2002 . . . . . . . . . . 104.375%
2003 . . . . . . . . . . 102.917%
2004 . . . . . . . . . . 101.458%
2005 and thereafter . . 100%
together in the case of any such redemption with accrued and unpaid interest,
if any, to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), all as provided in the
Indenture.
In the case of any redemption of Securities, interest installments whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one
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or more Predecessor Securities, of record at the close of business on the
relevant Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption and payment provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date.
In the event of redemption or purchase of this Security in part only, a new
Security or Securities for the unredeemed or unpurchased portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities do not have the benefit of any sinking fund obligations.
In the event of a Change of Control of the Company, and subject to certain
conditions and limitations provided in the Indenture, the Company will be
obligated to make an offer to purchase, on a Business Day not more than 75 or
less than 30 days following the occurrence of a Change of Control of the
Company, all of the then outstanding Securities validly tendered at a purchase
price equal to 101% of the principal amount thereof, together with accrued and
unpaid interest to the Change of Control Purchase Date, all as provided in the
Indenture.
In the event of Asset Sales, under certain circumstances, the Company will
be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Securities at a purchase price equal to 100% of the
principal amount of the Securities, together with accrued and unpaid interest
to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (a)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer); (b) default
for 30 days in payment of interest on any of the Securities; (c) default in
the performance of agreements relating to mergers, consolidations and sales of
all or substantially all assets or the failure to make or consummate a Change
of Control Offer or a Net Proceeds Offer; (d) failure for 45 days after notice
to comply with any other covenants in the Indenture or the Securities; (e)
certain payment defaults under, the acceleration prior to the maturity of, and
the exercise of certain enforcement rights with respect to, certain
Indebtedness of the Company or any Restricted Subsidiary in an aggregate
principal amount in excess of $12,000,000; (f) the failure of any Subsidiary
Guarantee to be in full force and effect or otherwise to be enforceable (except
as permitted by the Indenture); (g) certain events giving rise to ERISA
liability; (h) certain final judgments against any Restricted Subsidiary in an
aggregate amount of $12,000,000 or more which remain unsatisfied and either
become subject to commencement or enforcement proceedings or remain unstayed
for a period of 60 days; and (i) certain events of bankruptcy, insolvency or
reorganization of the Company or any Material Restricted Subsidiary. If any
Event of Default occurs and is continuing, the Trustee or the holders of at
least 25% in aggregate principal amount of the Outstanding Securities may
declare the principal amount of all the Securities to be due and payable
immediately, except that (i) in the case of an Event of Default arising from
certain events of bankruptcy, insolvency or reorganization of the Company or
any Restricted Subsidiary, the principal amount of the Securities will become
due and payable immediately without further action or notice, and (ii) in the
case of an Event of Default which relates to certain payment defaults,
acceleration or the
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exercise of certain enforcement rights with respect to certain Indebtedness,
any acceleration of the Securities will be automatically rescinded if any such
Indebtedness is repaid or if the default relating to such Indebtedness is cured
or waived and if the holders thereof have accelerated such Indebtedness then
such holders have rescinded their declaration of acceleration or if in certain
circumstances the proceedings or enforcement action with respect to the
Indebtedness that is the subject of such Event of Default is terminated or
rescinded. No Holder may pursue any remedy under the Indenture unless the
Trustee shall have failed to act after notice of an Event of Default and
written request by Holders of at least 25% in principal amount of the
Outstanding Securities, and the offer to the Trustee of indemnity reasonably
satisfactory to it; provided, however, such provision does not affect the right
to xxx for enforcement of any overdue payment on a Security by the Holder
thereof. Subject to certain limitations, Holders of a majority in principal
amount of the Outstanding Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except default in payment of principal, premium or
interest) if it determines in good faith that withholding the notice is in the
interest of the Holders. The Company is required to file quarterly reports
with the Trustee as to the absence or existence of defaults.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of the Company on this Security and (ii) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and any Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, any Subsidiary Guarantors and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this Security. Without the consent of any Holder, the
Company, any Subsidiary Guarantors and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of Definitive
Securities and to make certain other specified changes and other changes that
do not adversely affect the rights of any Holder.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay
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the principal of (and premium, if any, on) and interest on this Security at the
times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
the City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
A director, officer, incorporator, or stockholder of the Company or any
Subsidiary Guarantor, as such, shall not have any personal liability under this
Security or the Indenture by reason of his or its status as such director,
officer, incorporator or stockholder. Each Holder, by accepting this Security
with or without the notation of Subsidiary Guarantee endorsed hereon, waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of this Security with the notation of Subsidiary
Guarantee endorsed hereon.
Prior to the time of due presentment of this Security for registration of
transfer, the Company, any Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
is overdue, and neither the Company, the Subsidiary Guarantors, if any, the
Trustee nor any agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture. The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to the Company, Attention: Corporate Secretary, at 0
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders thereof. No
representation is made as to the accuracy
A-8
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of such numbers as printed on the Securities and reliance may be placed only on
the other identifying information printed hereon.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of law principles.
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140
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to ___________________________________________
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
------------------------- --------------------------------
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee:
-----------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
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141
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 9.15 or Section 9.16 of the Indenture, check the
appropriate box:
Section 9.15 [ ] Section 9.16 [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 9.15 or Section 9.16 of the Indenture, state the amount in
integral multiples of $1,000:
$
------------------------------
Date: Signature:
-------------------------- ----------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee:
--------------------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITY*
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Security following authorized signatory
Principal Amount Principal Amount such decrease of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
---------------- ----------------------- ----------------------- -------------------- ------------------
----------------------------------------------
* This should be included only if the Security is issued in global form.
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EXHIBIT B
FORM OF NOTATION RELATING TO SUBSIDIARY GUARANTEES
The form of notation to be set forth on each Security relating to the
Subsidiary Guarantees shall be in substantially the following form:
SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the Subsidiary
Guarantors (as defined in the Indenture referred to in the Security upon which
this notation is endorsed and each hereinafter referred to as a "Subsidiary
Guarantor," which term includes any successor or additional Subsidiary
Guarantor under the Indenture) have, jointly and severally, unconditionally
guaranteed (a) the due and punctual payment of the principal (and premium, if
any) of and interest on the Securities, whether at maturity, acceleration,
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest on the Securities, if any, to the extent
lawful, (c) the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms set
forth in the Indenture, and (d) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities and after giving effect to any collections from or payments made by
or on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under the Indenture, result in the obligations of
such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. Each
Subsidiary Guarantor that makes a payment or distribution under a Subsidiary
Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor.
The obligations of the Subsidiary Guarantors to the Holders or the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly
subordinate to all Guarantor Senior Indebtedness to the extent set forth in
Article XII of the Indenture and reference is made to such Indenture for the
precise terms of such subordination.
No stockholder, officer, director or incorporator, as such, past,
present or future, of the Subsidiary Guarantors shall have any personal
liability under the Subsidiary Guarantee by reason of his or its status as such
stockholder, officer, director or incorporator.
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144
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Security upon which this notation
of Subsidiary Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
The Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof and in the
Indenture.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until it has been executed by the manual or facsimile signature of an
authorized officer of each Subsidiary Guarantor and the certificate of
authentication on the Security upon which this Subsidiary Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
[SUBSIDIARY GUARANTOR]
Date: By:
---------------------------- --------------------------------
Name:
---------------------------
Title:
--------------------------
Attest:
-----------------------------
Secretary
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EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 3/4% Series [A/B] Senior Subordinated Notes due 2007 of Pogo
Producing Company (the "Company")
This Certificate relates to $_____ principal amount of
Securities held in *______ book-entry or *______ definitive form by
_____________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Securities held by the
Depositary, a Security or Securities in definitive registered form equal to its
beneficial interest in such Global Securities (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relative to the above captioned Securities and that the
transfer of this Security does not require registration under the Securities
Act (as defined below) because:*
[ ] Such Security is being acquired for the Transferor's own
account without transfer (in satisfaction of Section 2.07(a)(ii)(A) or Section
2.07(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A under the
Securities Act.
[ ] Such Security is being transferred (i) in accordance with Rule
144 under the Securities Act (and based on an opinion of counsel if the Company
so requests) or (ii) pursuant to an effective registration statement under the
Securities Act.
------------------------
*Check appropriate box.
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146
[ ] Such Security is being transferred to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (and based on an opinion of
counsel if the Company so requests) together with a certification in
substantially the form of Exhibit D to the Indenture and, to the knowledge of
the Transferor, such institutional accredited investor to whom such Security is
to be transferred is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company.
[ ] Such Security is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel if the Company so requests).
---------------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------------
Name:
Title:
Address:
Date:
-----------------------------
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147
EXHIBIT D
TRANSFEREE LETTER OF REPRESENTATIONS
Pogo Producing Company
c/o Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Dear Sirs and Madams:
In connection with our proposed purchase of $_________ aggregate
principal amount of 8 3/4% Senior Subordinated Notes due 2007 (the
"Securities") of Pogo Producing Company, a Delaware corporation (the
"Company"):
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or under
any other applicable securities laws, and may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing the Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities, or any
predecessor, thereto (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement that has been declared
effective by the Securities and Exchange Commission (the "SEC"), (c) for so long
as the Securities are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act (an "Institutional Accredited Investor") that is acquiring the Securities
for its own account or for the account of another Institutional Accredited
Investor for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the regulations of the
Securities Act and any other applicable securities laws or (e) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property and the property of such investor account or
accounts be at all times within our or their control. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is proposed
to be made pursuant to clause (d) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
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148
among other things, that the transferee is an Institutional Accredited Investor
and that it is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge that the
Company and the Trustee reserve the right prior to any offer, sale or other
transfer pursuant to clauses (d) or (e) prior to the Resale Restriction
Termination Date of the Securities to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the Company
and the Trustee.
2. We are an Institutional Accredited Investor purchasing for our
own account or for the account of another Institutional Accredited Investor.
3. We are acquiring the Securities purchased by us for our own
account, or for one or more accounts as to each of which we exercise sole
investment discretion, for investment purposes and not with a view to, or for
offer or sale in connection with any distribution in violation of, the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of investment in the
Securities, we invest in securities similar to the Securities in the normal
course of our business and we, and all accounts for which we are acting, are
able to bear the economic risks of investment in the Securities.
4. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy thereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
------------------------------------
(Name of Purchaser)
Upon transfer, the Securities should be registered in the name of the
new beneficial owner as follows:
Name:
--------------------------------------------------
Address:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Taxpayer ID No:
--------------------------------------------
D-2
