EXHIBIT 4.2(c)
KEY PRODUCTION COMPANY, INC.
Issuer
AND
______________________
Trustee
JUNIOR SUBORDINATED DEBT SECURITIES
______________________
INDENTURE
DATED AS OF ________________, ____
TABLE OF CONTENTS
Page
ARTICLE ONE ............................................................... 1
Definitions and Incorporation by Reference................................. 1
Section 1.01. Definitions.............................................. 1
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Section 1.02. Other Definitions........................................ 6
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Section 1.03. Incorporation by Reference of Trust Indenture Act........ 6
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Section 1.04. Rules of Construction.................................... 7
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ARTICLE TWO................................................................ 7
The Securities............................................................. 7
Section 2.01. Form and Dating.......................................... 7
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Section 2.02. Execution and Authentication............................. 8
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Section 2.03. Registrar and Paying Agent............................... 9
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Section 2.04. Paying Agent to Hold Money in Trust...................... 9
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Section 2.05. Securityholder Lists..................................... 10
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Section 2.06. Transfer and Exchange.................................... 10
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Section 2.07. Replacement Securities................................... 10
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Section 2.08. Outstanding Securities................................... 11
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Section 2.09. Temporary Securities..................................... 11
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Section 2.10. Cancellation............................................. 11
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Section 2.11. Defaulted Interest....................................... 12
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Section 2.12. Treasury Securities...................................... 12
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Section 2.13. CUSIP Numbers............................................ 12
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Section 2.14. Deposit of Moneys........................................ 12
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Section 2.15. Book-Entry Provisions for Global Security................ 12
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ARTICLE THREE.............................................................. 14
Redemption................................................................. 14
Section 3.01. Notices to Trustee....................................... 14
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Section 3.02. Selection of Securities to be Redeemed................... 14
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Section 3.03. Notice of Redemption..................................... 14
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Section 3.04. Effect of Notice of Redemption........................... 15
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Section 3.05. Deposit of Redemption Price.............................. 15
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Section 3.06. Securities Redeemed in Part.............................. 15
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ARTICLE FOUR............................................................................................ 16
Covenants............................................................................................... 16
Section 4.01. Payment of Securities............................................................. 16
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Section 4.02. Maintenance of Office or Agency................................................... 16
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Section 4.03. Compliance Certificate............................................................ 16
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Section 4.04. Payment of Taxes; Maintenance of Corporate Existence; Maintenance of Properties... 16
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ARTICLE FIVE............................................................................................ 17
Successor Corporation................................................................................... 17
Section 5.01. When Company May Merge, etc....................................................... 17
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ARTICLE SIX............................................................................................. 18
Defaults and Remedies................................................................................... 18
Section 6.01. Events of Default................................................................. 18
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Section 6.02. Acceleration...................................................................... 20
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Section 6.03. Other Remedies.................................................................... 20
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Section 6.04. Waiver of Existing Defaults....................................................... 21
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Section 6.05. Control by Majority............................................................... 21
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Section 6.06. Limitation on Suits............................................................... 21
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Section 6.07. Rights of Holders to Receive Payment.............................................. 22
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Section 6.08. Collection Suit by Trustee........................................................ 22
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Section 6.09. Trustee May File Proofs of Claim.................................................. 22
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Section 6.10. Priorities........................................................................ 22
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Section 6.11. Undertaking for Costs............................................................. 23
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ARTICLE SEVEN........................................................................................... 23
Trustee................................................................................................. 23
Section 7.01. Duties of Trustee................................................................. 23
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Section 7.02. Rights of Trustee................................................................. 24
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Section 7.03. Individual Rights of Trustee...................................................... 25
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Section 7.04. Trustee's Disclaimer.............................................................. 25
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Section 7.05. Notice of Defaults................................................................ 26
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Section 7.06. Reports by Trustee to Holders..................................................... 26
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Section 7.07. Compensation and Indemnity........................................................ 26
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Section 7.08. Replacement of Trustee............................................................ 27
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Section 7.09. Successor Trustee by Xxxxxx, etc.................................................. 27
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Section 7.10. Eligibility; Disqualification..................................................... 28
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Section 7.11. Preferential Collection of Claims Against Company................................. 28
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ARTICLE EIGHT...............................................................................28
Discharge of Indenture......................................................................28
Section 8.01. Defeasance Upon Deposit of Moneys or U.S. Government Obligations..28
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Section 8.02. Survival of the Company's Obligations.............................31
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Section 8.03. Application of Trust Money........................................31
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Section 8.04. Repayment to the Company..........................................32
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Section 8.05. Reinstatement.....................................................32
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ARTICLE NINE................................................................................32
Amendments, Supplements and Waivers.........................................................32
Section 9.01. Without Consent of Holders........................................32
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Section 9.02. With Consent of Holders...........................................33
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Section 9.03. Compliance with Trust Indenture Act...............................34
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Section 9.04. Revocation and Effect of Consents.................................34
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Section 9.05. Notation on or Exchange of Securities.............................35
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Section 9.06. Trustee to Sign Amendments, etc...................................35
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ARTICLE TEN.................................................................................35
Miscellaneous...............................................................................35
Section 10.01. Trust Indenture Act Controls......................................35
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Section 10.02. Notices...........................................................35
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Section 10.03. Communications by Holders with Other Holders......................36
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Section 10.04. Certificate and Opinion as to Conditions Precedent................36
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Section 10.05. Statements Required in Certificate or Opinion.....................37
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Section 10.06. Rules by Trustee and Agents.......................................37
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Section 10.07. Legal Holidays....................................................37
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Section 10.08. Governing Law.....................................................38
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Section 10.09. No Adverse Interpretation of Other Agreements.....................38
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Section 10.10. No Recourse Against Others........................................38
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Section 10.11. Successors and Assigns............................................38
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Section 10.12. Duplicate Originals...............................................38
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Section 10.13. Severability......................................................38
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ARTICLE ELEVEN..............................................................................38
Subordination...............................................................................38
Section 11.01. Agreement to Subordinate..........................................38
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Section 11.02. Certain Definitions...............................................39
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Section 11.03. Liquidation; Dissolution; Bankruptcy..............................39
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Section 11.04. Default on Senior Indebtedness....................................39
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Section 11.05. Acceleration of Securities........................................40
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Section 11.06. When Distributions Must Be Paid Over..............................40
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Section 11.07. Notice by the Company.............................................40
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Section 11.08. Subrogation.......................................................41
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Section 11.09. Relative Rights...................................................41
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Section 11.10. Subordination May Not Be Impaired by the Company..................41
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Section 11.11. Distribution or Notice to the Representative......................41
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Section 11.12. Rights of the Trustee and Paying Agent............................41
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Section 11.13. No Fiduciary Duty to Holders of Senior Indebtedness...............42
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EXHIBIT A .........................................................................A-1
iv
CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
TIA Indenture
Section Section
310(a)(1).....................................................7.10
(a)(2)........................................................7.10
(a)(3)........................................................N.A.
(a)(4)........................................................N.A.
(b)..............................................7.08; 7.10; 10.02
311(a)........................................................7.11
(b)...........................................................7.11
(c)...........................................................N.A.
312(a).......................................................2.0.5
(b)..........................................................10.03
(c)..........................................................10.03
313(a)........................................................7.06
(b)(1)........................................................N.A.
(b)(2)........................................................7.06
(c)..........................................................10.02
(d)...........................................................7.06
314(a).................................................7.06; 10.02
(b)...........................................................N.A.
(c)(1).......................................................10.04
(c)(2).......................................................10.04
(c)(3)........................................................N.A.
(d)...........................................................N.A.
(e)..........................................................10.05
(f)...........................................................N.A.
315(a).....................................................7.01(b)
(b)....................................................7.05; 10.02
(c)........................................................7.01(a)
(d)........................................................7.01(c)
(e)...........................................................6.11
316(a)(last sentence).........................................2.12
(a)(1)(A).....................................................6.05
(a)(1)(B).....................................................6.04
(a)(2)........................................................N.A.
(b)...........................................................6.07
(c)...........................................................9.04
317(a)(1).....................................................6.08
(a)(2)........................................................6.09
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(b)..............................................................2.04
318(a)..........................................................10.01
N.A. means Not Applicable.
vi
INDENTURE dated as of ________________, ____, by and among KEY PRODUCTION
COMPANY, INC., a Delaware corporation (the "Company"), and ________________,
(the "Trustee").
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 debt securities issued
under this Indenture (the "Securities"):
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.
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"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person, or (ii) any officer,
director, a Person acting with respect to such Person in a similar capacity, or
controlling shareholder of such other Person. For purposes of this definition,
the term "control" means (a) the power to direct the management and policies of
a Person, either directly or through one or more intermediaries, whether through
the ownership of voting securities, by contract, or otherwise, or (b) without
limiting the foregoing, the beneficial ownership of 10% or more of the voting
power of the voting common equity of such Person (on a fully diluted basis).
Notwithstanding the foregoing, the term "Affiliate" will not include, with
respect to the Company or any Restricted Subsidiary of the Company, any
Restricted Subsidiary of the Company, or the Company, with respect to any
Restricted Subsidiary.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Attributable Debt" means, with respect to any Capitalized Lease
Obligations, the capitalized amount thereof determined in accordance with GAAP.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors or by an Officer or committee of Officers pursuant to Board delegation
authorizing a Series of Securities.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other
equity interests, whether now outstanding or issued after the applicable Issue
Date, including, without limitation, all Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined in
accordance with GAAP.
"Company" means the Person named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means the
successor.
"Currency Agreement" of any Person means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries or Affiliates against
fluctuations in currency values.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, unless otherwise timely cured, an Event of
Default.
"GAAP" means generally accepted accounting principles 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, as in effect on the date of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (i) any liability
of such Person (other than accounts payable, other trade payables and accrued
expenses incurred in the ordinary course of such Person's business) (a) for
borrowed money or under any reimbursement obligation relating to a letter of
credit or other similar instruments (other than standby letters of credit issued
for the benefit of or surety, performance, completion or payment xxxxx, xxxxxxx
money notes or similar purpose undertakings or indemnifications issued by, such
Person in the ordinary course of business, general contingency and tax reserves,
liabilities for deposits and deferred income which in accordance with GAAP is
recorded as a liability), (b) evidenced by a bond, note, debenture or similar
instrument (including a purchase money obligation) given in connection with the
acquisition of any businesses, properties or assets of any kind or with services
incurred in connection with capital expenditures (other than any obligation to
pay a contingent purchase price which, as of the date of incurrence thereof is
not required to be recorded as a liability in accordance with GAAP), or (c) in
respect of Capitalized Lease Obligations (to the extent of the Attributable Debt
in respect thereof), (ii) any Indebtedness of others that such Person has
guaranteed to the extent of the guarantee, (iii) to the extent not otherwise
included, the obligations of such Person under Currency Agreements or Interest
Protection Agreements to the extent recorded as liabilities not constituting
Interest Incurred, net of amounts recorded as assets in respect of such
agreements, in accordance with GAAP, and (iv) all Indebtedness of others
2
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person. The amount of Indebtedness of any Person at any date
shall be (a) the outstanding balance at such date of all unconditional
obligations as described above, net of any unamortized discount to be accounted
for as Interest Expense, in accordance with GAAP, (b) the maximum liability of
such Person for any contingent obligations under clause (ii) above at such date,
net of, any unamortized discount to be accounted for as Interest Expense in
accordance with GAAP and (c) in the case of clause (iv) above, the lesser of (1)
the fair market value of any asset subject to a Lien securing the Indebtedness
of others on the date that the Lien attaches and (2) the amount of the
Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time to
time, including pursuant to any Authorizing Resolution or supplemental indenture
pertaining to any Series.
"Interest Expense" of any Person for any period means, without duplication,
the aggregate amount of (i) interest which, in conformity with GAAP, would be
set opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and other
fees and charges owned with respect to letters of credit and bankers' acceptance
financing, the net costs (but reduced by net gains) associated with Currency
Agreements and Interest Protection Agreements, amortization of other financing
fees and expenses; with respect to the Company and its Restricted Subsidiaries,
but excluding its Unrestricted Subsidiaries, the interest portion of any
deferred payment obligation, amortization of discount or premium, if any, and
all other noncash interest expense other than interest and other charges
amortized to cost of sales), and (ii) all interest actually paid by the Company
or a Restricted Subsidiary under any guarantee of Indebtedness (including,
without limitation, a guarantee of principal, interest or any combination
thereof) of any Person other than the Company or any Restricted Subsidiary
during such period; provided, that Interest Expense shall exclude any expense
associated with the complete write-off of financing fees and expenses in
connection with the repayment or repurchase of any Indebtedness.
"Interest Protection Agreement" of any Person means any interest rate swap
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates with respect to Indebtedness
permitted to be incurred under this Indenture.
"Investments" of any Person means (i) all investments by such Person in any
other Person in the form of loans, advances or capital contributions, (ii) all
guarantees of Indebtedness or other obligations of any other Person by such
person, (iii) all purchases (or other acquisitions for consideration) by such
Person of Indebtedness, Capital Stock or other securities of any other Person
and (iv) all other items that would be classified as investments in any other
Person (including, without limitation, purchases of assets outside the ordinary
course of business) on a balance sheet of such Person prepared in accordance
with GAAP.
3
"Issue Date" means, with respect to any Series of Securities, the date on
which the Securities of such Series are originally issued under this Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such Property
(other than an obligation to share revenues or profits upon the sale or
liquidation of Property to which such obligation relates). For purposes of this
definition, a Person shall be deemed to own, subject to a Lien, any Property
which it 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 relating to such Property.
"Non-Recourse Indebtedness" with respect to any Person means
Indebtedness of such Person for which (i) the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific property
identified in the instruments evidencing or securing such Indebtedness and such
property was acquired with the proceeds of such Indebtedness or such
Indebtedness was incurred within 90 days after the acquisition of such property
and (ii) no other assets of such Person may be realized upon in collection of
principal or interest on such Indebtedness. Indebtedness which is otherwise
Non-Recourse Indebtedness will not lose its character as Non-Recourse
Indebtedness because there is recourse to the borrower or any other Person for
(i) environmental warranties and indemnities, or (ii) indemnities for and
liabilities arising from fraud, misrepresentation, misapplication or non-payment
of rents, profits, insurance and condemnation proceeds and other sums actually
received by the borrower from secured assets to be paid to the lender, waste and
mechanics' liens.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
"Principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
4
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Restricted Subsidiary" means any Subsidiary of the Company which is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission or any successor agency
performing the duties now assigned to it under the TIA.
"Securities" means any Securities that are issued under this Indenture.
"Series" means a series of Securities established under this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which would
constitute a "significant subsidiary" as defined in Rule 1.02 of Regulation S-X
under the Securities Act and the Exchange Act.
"Subsidiary" of any Person means any corporation or other entity (other
than political subdivisions or enterprises thereof or governmental agencies) of
which a majority of the Capital Stock having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar functions
is at the time directly or indirectly owned or controlled by such Person.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to
time.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor
serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any Vice
President or any other officer or assistant officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt issued
by a bank or trust company as custodian with respect to any such U.S. government
obligations or a specific payment of interest on or principal of any such U.S.
government obligation held by such custodian for the account of the holder of a
depositary receipt; provided, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary
5
receipt from any amount received by the custodian in respect of the U.S.
government obligation or the specific payment of interest on or principal of the
U.S. government obligation evidenced by such depositary receipt.
"Unrestricted Subsidiary" means any Subsidiary of the Company so designated
by a resolution adopted by the Board of Directors of the Company.
Section 1.02. Other Definitions.
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Term Defined in Section
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"Agent Members"..................... 2.15
"Business Day"...................... 10.07
"Custodian"......................... 6.01
"Depositary"........................ 2.15
"Event of Default".................. 6.01
"Legal Holiday"..................... 10.07
"Paying Agent"...................... 2.03
"Registrar"......................... 2.03
Senior Indebtedness"................ 11.02
"Representative".................... 11.02
Section 1.03. Incorporation by Reference of Trust Indenture Act.
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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:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
"Indenture Security Holder" means a Securityholder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities of a Series thereof.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
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Section 1.04. Rules of Construction.
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term, not otherwise defined, has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
The Securities
Section 2.01. Form and Dating.
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The aggregate principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time to time in one
or more Series. Each Series shall be created by an Authorizing Resolution or a
supplemental indenture that establishes the terms of the Series, which may
include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the Series and, if any Securities of a Series
are to be issued at a discount from their face amount, the method
of computing the accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and
interest are payable;
(7) the Registrar and Paying Agent;
7
(8) the terms of any mandatory (including any sinking fund
requirements) or optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and
the terms of any such forms of Securities;
(12) whether any Securities will be represented by a global Security
and the terms of any such global Security;
(13) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the manner
for determining such payments;
(14) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(15) any Events of Default, covenants and/or defined terms in addition
to or in lieu of those set forth in this Indenture;
(16) whether and upon what terms Securities may be defeased if
different from the provisions set forth in this Indenture;
(17) the form of the Securities, which, unless the Authorizing
Resolution or supplemental indenture otherwise provides, shall be
in the form of Exhibit A;
(18) any terms that may be required by or advisable under applicable
law;
(19) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the
case of Securities issued at a discount from their face amount;
and
(20) any other terms in addition to or different from those contained
in this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series pursuant to an Authorizing Resolution, an Officers'
Certificate or in any indenture supplemental hereto.
The creation and issuance of a Series and the authentication and delivery
thereof are not subject to any conditions precedent.
Section 2.02. Execution and Authentication.
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Two Officers shall sign, or one Officer shall sign and one Officer shall
attest to, the Securities for the Company by manual or facsimile signature. The
Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon receipt
of an Officers' Certificate of the Company. Each Security shall be dated the
date of its authentication.
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent) and an
office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-Registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall promptly notify the
Trustee in writing of the name and address of any such Agent and the Trustee
shall have the right to inspect the Securities register at all reasonable times
to obtain copies thereof, and the Trustee shall have the right to rely upon such
register as to the names and addresses of the Holders and the principal amounts
and certificate numbers thereof. If the Company fails to maintain a Registrar or
Paying Agent or fails to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of
Securityholders and the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon doing so the Paying
Agent shall have no further liability for the money.
9
Section 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least 5 Business Days before each semi-annual interest payment
date and at such other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
---------------------
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-Registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit transfers and exchanges,
the Trustee shall authenticate Securities at the Registrar's request. The
Registrar need not transfer or exchange any Security selected for redemption,
except the unredeemed part thereof if the Security is redeemed in part, or
transfer or exchange any Securities for a period of 15 days before a selection
of Securities to be redeemed. Any exchange or transfer shall be without charge,
except that the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto except in
the case of exchanges pursuant to 2.09, 3.06, or 9.05 not involving any
transfer.
Any Holder of a global Security shall, by acceptance of such global
Security, agree that transfers of beneficial interests in such global Security
may be effected only through a book entry system maintained by the Holder of
such global Security (or its agent), and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry.
Section 2.07. Replacement Securities.
----------------------
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Company shall issue and, upon
written request of any Officer of the Company, the Trustee shall authenticate a
replacement Security; provided, however, in the case of a lost, destroyed or
wrongfully taken Security, that the requirements of Section 8-405 of the New
York Uniform Commercial Code are met. If any such lost, destroyed, mutilated or
wrongfully taken Security shall have matured or shall be about to mature, the
Company may, instead of issuing a substitute Security therefor, pay such
Security without requiring (except in the case of a mutilated Security) the
surrender thereof. An indemnity bond must be sufficient in the judgment of the
Company and the
Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced, including the
acquisition of such Security by a bona
10
fide purchaser. The Company or the Trustee may charge the Holder for expenses in
replacing a Security.
Section 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it and those described in this Section. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If, on a redemption date or maturity date, the Paying Agent holds money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
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.
Section 2.09. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and, upon surrender for
cancellation of the temporary Security, the Company shall execute and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
authenticated and delivered hereunder.
Section 2.10. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange,
redemption or payment. The Trustee and no one else shall cancel and destroy, or
retain in accordance with its standard retention policy, all Securities
surrendered for registration or transfer, exchange, redemption, paying or
cancellation. Unless the Authorizing Resolution so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or
delivered to the Trustee for cancellation.
11
Section 2.11. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the persons who are Securityholders on a subsequent special record
date. The Company shall fix such special record date and a payment date which
shall be reasonably satisfactory to the Trustee. At least 15 days before such
special record date, the Company shall mail to each Securityholder a notice that
states the record date, the payment date and the amount of defaulted interest to
be paid. On or before the date such notice is mailed, the Company shall deposit
with the Paying Agent money sufficient to pay the amount of defaulted interest
to be so paid. The Company may pay defaulted interest in any other lawful
manner if, after notice given by the Company to the Trustee of the proposed
payment, such manner of payment shall be deemed practicable by the Trustee.
Section 2.12. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or any of its Subsidiaries shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually knows
are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
-------------
The Company in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities; provided
that no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of any such CUSIP number printed in the notice or on
such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Company shall promptly
notify the Trustee of any change in any CUSIP number.
Section 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each interest payment date and
maturity date with respect to each Series of Securities, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments due on such interest payment date or maturity date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such interest payment date or maturity date, as the case may
be.
Section 2.15. Book-Entry Provisions for Global Security.
-----------------------------------------
(a) Any global Security of a Series initially shall (i) be registered in
the name of the depository who shall be identified in the Authorizing Resolution
or supplemental indenture
12
relating to such Securities (the "Depository") or the nominee of such
Depository, (ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear any required legends.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of any global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the global Security may be
transferred or exchanged for definitive Securities in accordance with the rules
and procedures of the Depository. In addition, definitive Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a global Security if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the global Security and a
successor depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue definitive
Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the global Security in an amount equal to the principal
amount of the beneficial interest in the global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire global Security to
beneficial owners pursuant to paragraph (b), the global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the global Security, an equal aggregate principal amount of definitive
Securities of authorized denominations.
(e) The Holder of any 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 of such Series.
13
ARTICLE THREE
Redemption
Section 3.01. Notices to Trustee.
------------------
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing Resolution
or supplemental indenture provides otherwise, in accordance with this Article.
If the Company wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
canceled at any time prior to notice of such redemption being mailed to Holders.
Any such canceled notice shall be void and of no effect.
If the Company wants to credit any Securities previously redeemed, retired
or acquired against any redemption pursuant to Paragraph 6 of the Securities, it
shall notify the Trustee of the amount of the credit and it shall deliver any
Securities not previously delivered to the Trustee for cancellation with such
notice.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days before the notice of any such redemption is to be mailed to
Holders (unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
--------------------------------------
If fewer than all of the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities outstanding not previously called for redemption and shall promptly
notify the Company of the serial numbers or other identifying attributes of the
Securities so selected. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than the minimum
denomination for the Series. Securities and portions of them it selects shall be
in amounts equal to the minimum denomination for the Series or an integral
multiple thereof. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.
Section 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
14
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue on
and after the redemption date; and
(6) that the Securities are being redeemed pursuant to the mandatory
redemption or the optional redemption provisions, as applicable.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall deliver to the Trustee at least 15 days prior to the date on which notice
of redemption is to be mailed or such shorter period as may be satisfactory to
the Trustee, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as set
forth in the notice of redemption. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus accrued interest to the
redemption date.
Section 3.05. Deposit of Redemption Price.
---------------------------
On or before the redemption date, the Company shall deposit with the Paying
Agent immediately available funds sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for each Holder a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
15
ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on a Series on the
dates and in the manner provided in the Securities of the Series. An
installment of principal or interest shall be considered paid on the date it is
due, if on that date the Paying Agent holds money designated for and sufficient
to pay the installment; provided, however, that money held by the Paying Agent
for the benefit of holders of Senior Indebtedness pursuant to the provisions of
Article 11 hereof shall not be considered paid within the meaning of this
Section 4.01.
The Company shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate.
Section 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee.
Section 4.03. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating whether or not
the signers know of any Default by the Company in performing any of its
obligations under this Indenture. If they do know of such a Default, the
certificate shall describe the Default.
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence; Maintenance
-----------------------------------------------------------------
of Properties.
-------------
The Company will:
(a) cause to be paid and discharged all lawful taxes, assessments and
governmental charges or levies imposed upon the Company and its
Restricted Subsidiaries or upon the income or profits of the
Company and its Restricted Subsidiaries or upon property or any
part thereof belonging to the Company and its Restricted
Subsidiaries before the same shall be in default, as well as all
lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such property or any part
thereof; provided, however, that the Company shall not be required
to cause to be paid or discharged any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and
the nonpayment thereof does not, in the judgment of the Company,
materially adversely affect the ability of the Company and the
Restricted Subsidiaries to pay all obligations under this
Indenture when due; and provided further, that the Company shall
not be required to cause to be paid or discharged any such tax,
assessment,
16
charge, levy or claim if, in the judgment of the Company, such
payment shall not be advantageous to the Company in the conduct of
its business and if the failure so to pay or discharge does not,
in its judgment, materially adversely affect the ability of the
Company and the Restricted Subsidiaries to pay all obligations
under this Indenture when due;
(b) cause to be done all things necessary to preserve and keep in full
force and effect the corporate existence of the Company and each
of its Restricted Subsidiaries; provided, however, that nothing in
this subsection (b) shall prevent a consolidation or merger of the
Company or any Restricted Subsidiary not prohibited by the
provisions of Article Five or any other provision or the
Authorizing Resolution or supplemental indenture pertaining to a
Series, and the Company need not maintain the corporate existence
of an immaterial Restricted Subsidiary ; and
(c) at all times keep, maintain and preserve the property of the
Company and the Restricted Subsidiaries in good repair, working
order and condition (reasonable wear and tear excepted) and from
time to time make all needful and proper repairs, renewals,
replacements, betterments and improvements thereto, so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this subsection (c) shall prevent the Company from
discontinuing the operation and maintenance of any such properties
if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous
in any material respect to the ability of the Company and the
Restricted Subsidiaries to pay all obligations under this
Indenture when due.
ARTICLE FIVE
Successor Corporation
Section 5.01. When Company May Merge, etc.
---------------------------
The Company shall not consolidate with or merge with or into, any other
corporation, or transfer all or substantially all of its assets to, any entity
unless permitted by law and unless (1) the resulting, surviving or transferee
entity, which shall be a corporation organized and existing under the laws of
the United States or a State thereof, assumes by supplemental indenture, in a
form reasonably satisfactory to the Trustee, all of the obligations of the
Company under the
17
Securities and this Indenture and (2) immediately after giving effect to, and as
a result of, such transaction, no Default or Event of Default shall have
occurred and be continuing. Thereafter such successor corporation or
corporations shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the "Company" and all such obligations
of the predecessor corporation shall terminate.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
To the extent that an Authorizing Resolution or supplemental indenture
pertaining to any Series provides for different provisions relating to the
subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such Series.
ARTICLE SIX
Defaults and Remedies
Section 6.01. Events of Default.
-----------------
An "Event of Default" on a Series occurs if, voluntarily or involuntarily,
whether by operation of law or otherwise, any of the following occurs:
(1) the failure by the Company to pay interest on any Security of such
Series when the same becomes due and payable and the continuance
of any such failure for a period of 30 days;
(2) the failure by the Company to pay the principal or premium of any
Security of such Series when the same becomes due and payable at
maturity, upon acceleration or otherwise;
(3) the failure by the Company or any Restricted Subsidiary to comply
in all material respects with any of its agreements or covenants
in, or provisions of, the Securities of such Series, or this
Indenture (as they relate thereto) and such failure continues for
the period and after the notice specified below (except in the
case of a default with respect to Article Five (or any replacement
provisions as contemplated by Article Five), which will constitute
an Event of Default with notice but without passage of time);
(4) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary in an
amount of $30 million or more, individually or in the aggregate,
and such acceleration does not cease to exist, or such
Indebtedness is not satisfied, in either case within 30 days after
such acceleration;
18
(5) the failure by the Company or any Restricted Subsidiary to make
any principal or interest payment in an amount of $30 million or
more, individually or in the aggregate, in respect of Indebtedness
for borrowed money (other than Non-Recourse Indebtedness) of the
Company or any Restricted Subsidiary within 30 days of such
principal or interest becoming due and payable (after giving
effect to any applicable grace period set forth in the documents
governing such Indebtedness);
(6) a final judgment or judgments in an amount of $30 million or more,
individually or in the aggregate, for the payment of money having
been entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgment or judgments is not covered by a policy of insurance,
satisfied, stayed, annulled or rescinded within 90 days of being
entered;
(7) the Company or any Restricted Subsidiary that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment (except in the case of a
Restricted Subsidiary, to the Company) for the benefit of its
creditors; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary that is a Significant Subsidiary as debtor in an
involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or a Custodian
for all or substantially all of the property of the Company
or any Restricted Subsidiary that is a Significant
Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary, and the order or
decree remains unstayed and in effect for 90 days.
A Default as described in sub-clause (3) above will not be deemed an Event
of Default until the Trustee notifies the Company, or the Holders of at least 25
percent in principal amount
19
of the then outstanding Securities of the applicable Series notify the Company
and the Trustee, of the Default and (except in the case of a default with
respect to Article Five (or any replacement provisions as contemplated by
Article Five)) the Company does not cure the Default within 90 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." If such a Default
is cured within such time period, it ceases.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default with respect to the
Company resulting from sub-clauses (7) or (8) above), shall have occurred and be
continuing under the Indenture, the Trustee by notice to the Company, or the
Holders of at least 25 percent in principal amount of the Securities of the
applicable Series then outstanding by notice to the Company and the Trustee, may
declare all Securities of such Series to be due and payable immediately. Upon
such declaration of acceleration, the amounts due and payable on the Securities
of such Series will be due and payable immediately. If an Event of Default with
respect to the Company specified in sub-clauses (7) or (8) above occurs, all
amounts due and payable on the Securities of such Series will ipso facto become
and be immediately due and payable without any declaration, notice or other act
on the part of the Trustee and the Company or any Holder. The Holders of a
majority in principal amount of the Securities of such Series then outstanding
by written notice to the Trustee and the Company may waive any Default or Event
of Default (other than any Default or Event of Default in payment of principal
or interest) with respect to such Series of Securities under the Indenture.
Holders of a majority in principal amount of the then outstanding Securities of
such Series may rescind an acceleration with respect to such Series and its
consequence (except an acceleration due to nonpayment of principal or interest
on the Securities of such Series) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived.
No such rescission shall extend to or shall affect any subsequent Event of
Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
--------------
If an Event of Default on a Series occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Series or to enforce the performance
of any provision in the Securities or this Indenture applicable to the Series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not
20
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
---------------------------
Subject to Section 9.02, the Holders of a majority in principal amount of
the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an existing Default on such Series and
its consequences. When a Default is waived, it is cured and stops continuing,
and any Event of Default arising therefrom shall be deemed to have been cured;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.05. Control by Majority.
-------------------
The Holders of a majority in principal amount of the outstanding Securities
of a Series may 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 it with respect to such Series. The Trustee, however, may refuse
to follow any direction (i) that conflicts with law or this Indenture, (ii)
that, subject to Section 7.01, the Trustee determines is unduly prejudicial to
the rights of other Securityholders, or (iii) that would involve the Trustee in
personal liability.
Section 6.06. Limitation on Suits.
-------------------
A Securityholder of a Series may not pursue any remedy with respect to this
Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default on the Series;
(2) the Holders of at least a majority in principal amount of the
outstanding Securities of the Series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 90 days after
receipt of the request and the offer of indemnity; and
(5) no written request inconsistent with such written request shall
have been given to the Trustee pursuant to this Section 6.06.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
21
Section 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements,
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property, and unless prohibited by applicable law or regulation, may vote on
behalf of the Holders in any election of a Custodian, and shall be entitled and
empowered to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same and any Custodian in
any such judicial proceeding is hereby authorized by each Securityholder to make
such payments to the Trustee. Nothing herein shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder or to authorize
the Trustee to vote in respect of the claim of any Securityholder except as
aforesaid for the election of the Custodian.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Senior Indebtedness to the extent required by
Article 11;
Third: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company as its interests may appear.
22
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having the due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in principal amount of the Series.
ARTICLE SEVEN
Trustee
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall, prior to the receipt of directions from the Holders of a
majority in principal amount of the Securities, exercise its
rights and powers and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this
Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of his Indenture. The Trustee,
however, shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture but need not confirm or investigate the
accuracy of mathematical calculations or other facts or
matters stated herein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own
willful misconduct, except that:
23
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 or any
other direction of the Holders permitted hereunder.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held
in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that the repayment of such funds
or adequate indemnity against such liability is not reasonably
assured to it.
Section 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document, resolution, certificate,
instrument, report, or direction believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document,
resolution, certificate, instrument, report, or direction.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which
shall conform to Sections 10.04 and 10.05 hereof and containing
such other statements as the Trustee reasonably deems necessary to
perform its duties hereunder. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
the Officers' Certificate, Opinion of Counsel or any other
direction of the Company permitted hereunder.
24
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action 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.
(e) The Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel as to matters of law shall
be full and complete authorization and protection in respect of
any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such
counsel.
(f) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other
than under Section 6.01(1) or 6.01(2)) unless a Trust Officer
assigned to and working in the Trustee's corporate trust office
has actual knowledge thereof or unless written notice of any Event
of Default is received by the Trustee at its address specified in
Section 10.02 hereof and such notice references the Securities
generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, must comply with Sections 7.10 and
7.11.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of this
Indenture, the Securities or of any prospectus used to sell the Securities; it
shall not be accountable for the Company's use of the proceeds from the
Securities; it shall not be accountable for any money paid to the Company, or
upon the Company's direction, if made under and in accordance with any provision
of this Indenture; it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee; and it shall not be
responsible for any statement of the Company in this Indenture or in the
Securities other than its certificate of authentication.
25
Section 7.05. Notice of Defaults.
------------------
If a Default on a Series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the Series notice of
the Default (which shall specify any uncured Default known to it) within 90 days
after it occurs. Except in the case of a default in payment of principal of or
interest on a Series, the Trustee may withhold the notice if and so long as the
board of directors of the Trustee, the executive or any trust committee of such
directors and/or responsible officers of the Trustee in good faith determine(s)
that withholding the notice is in the interests of Holders of the Series.
Section 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(2) has occurred within the twelve months
preceding the reporting date no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be delivered to the Company and filed by the Trustee with the SEC and each
national securities exchange on which the Securities are listed. The Company
agrees to notify the Trustee of each national securities exchange on which the
Securities are listed.
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee or predecessor trustee from time to
time reasonable compensation for their respective services subject to any
written agreement between the Trustee and the Company. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify the
Trustee and each predecessor trustee, its officers, directors, employees and
agents and hold it harmless against any loss, liability or expense incurred or
made by or on behalf of it in connection with the administration of this
Indenture or the trust hereunder and its duties hereunder including the costs
and expenses of defending itself against or investigating any claim in the
premises. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the Trustee's, or
its officers', directors', employees' or agents' negligence or bad faith.
To ensure the Company's payment obligations in this Section, the Trustee
shall have a claim prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal of or
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 6.01 or in connection with Article 6
hereof, the expenses (including
26
the reasonable fees and expenses of its counsel) and the compensation for
services in connection therewith are to constitute expenses of administration
under any bankruptcy law.
Section 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the removed Trustee in writing and may appoint a
successor trustee with the Company's consent. Such resignation or removal shall
not take effect until the appointment by the Securityholders or the Company as
hereinafter provided of a successor trustee and the acceptance of such
appointment by such successor trustee. The Company may remove the Trustee and
any Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee for any or no
reason, including if:
(1) the Trustee fails to comply with Section 7.10 after written
request by the Company or any bona fide Securityholder who has
been a Securityholder for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
trustee. If a successor trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or any
Holder may petition any court of competent jurisdiction for the appointment of a
successor trustee.
A successor trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor trustee, the resignation or removal of the retiring Trustee shall
become effective, and the successor trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor trustee shall mail
notice of its succession to each Securityholder.
Section 7.09. Successor Trustee by Xxxxxx, etc.
--------------------------------
If the Trustee consolidates with, merges with or into or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor trustee.
27
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss.310(a)(1). The Trustee shall have a combined capital and surplus of
at least $10,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss.310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss.311(a) to the extent indicated therein.
ARTICLE EIGHT
Discharge of Indenture
Section 8.01. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.
----------------------------------------------------------------
(a) The Company may, at its option and at any time, elect to have
either paragraph (b) or paragraph (c) below be applied to the
outstanding Securities of any Series upon compliance with the
applicable conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to
have been released and discharged from its respective obligations
with respect to the outstanding Securities of a Series on the date
the applicable conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding
Securities of a Series, which shall thereafter be deemed to be
"outstanding" only for the purposes of the Sections and matters
under this Indenture referred to in (i) and (ii) below, and to
have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned, except
for the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of outstanding
Securities of a Series to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in
such paragraph, payments in respect of the principal of and
interest on such Securities when such payments are due and (ii)
obligations listed in Section 8.02, subject to compliance with
this Section 8.01. The Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) below with respect to such Securities.
28
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released
and discharged from the obligations under any covenant contained
in Article Five and any other covenant contained in the
Authorizing Resolution or supplemental indenture relating to such
Series to the extent provided for therein, on and after the date
the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities of such Series shall
thereafter be deemed to be not "outstanding" for the purpose 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
of a Series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under
Section 6.01(3), but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities
of the applicable Series:
(1) The Company shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance reasonably satisfactory to
the Trustee, money in U.S. dollars or U.S. government
obligations or a combination thereof in such amounts and at
such times as are sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the
principal of and interest on the outstanding Securities of
such Series to maturity or redemption; provided, however,
that the Trustee (or other qualifying trustee) shall have
received an irrevocable written order from the Company
instructing the Trustee (or other qualifying trustee) to
apply such money or the proceeds of such U.S. government
obligations to said payments with respect to the Securities
of such Series to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) Such deposit will not result in a Default under this
Indenture or a breach or violation of, or constitute a
default under, any other material instrument or agreement to
which the Company or any of its Subsidiaries is a party or by
which it or any of their property is bound;
29
(4) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel in
the United States, in form and substance reasonably
satisfactory to the Trustee, to the effect that (A) the
Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the Issue
Date pertaining to such Series, there has been a change in
the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall
state that, or (ii) in the event the Company elects paragraph
(c) hereof, the Company shall deliver to the Trustee an
Opinion of Counsel in the United States, in form and
substance reasonably satisfactory to the Trustee, to the
effect that, in the case of clauses (i) and (ii), Holders of
the Securities of such Series will not recognize income, gain
or loss for United States federal income tax purposes as a
result of such deposit and the defeasance contemplated hereby
and will be subject to federal income tax in the same amounts
and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not
occurred;
(5) The Company shall have delivered to the Trustee an Officers'
Certificate, stating that the deposit under clause (1) was
not made by the Company with the intent of preferring the
Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory to the Trustee, to the
effect that, (A) the trust funds will not be subject to the
rights of Holders of Indebtedness of the Company other than
the Securities of such Series and (B) assuming no intervening
bankruptcy of the Company between the date of deposit and the
91st day following the deposit and that no Holder of
Securities of such Series is an insider of the Company, after
the 91st day following the deposit, the trust funds will not
be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights
generally; and
(7) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the
defeasance contemplated by this Section 8.01 have been
complied with.
In the event all or any portion of the Securities of a Series are to be
redeemed through such irrevocable trust, the Company must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
30
(e) In addition to the Company's rights above under this Section 8.01,
the Company may terminate all of its obligations under this
Indenture with respect to a Series when:
(1) All Securities of such Series theretofore authenticated and
delivered (other than Securities which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.07 and Securities for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been delivered to
the Trustee for cancellation or all such Securities not
theretofore delivered to the Trustee for cancellation have
become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust solely for that purpose an amount of money
sufficient to pay and discharge the entire Indebtedness on
the Securities not theretofore delivered to the Trustee for
cancellation, for principal of and interest;
(2) The Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) The Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of
the Securities at maturity or redemption, as the case may be;
and
(4) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all
conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been
complied with.
Section 8.02. Survival of the Company's Obligations.
-------------------------------------
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Company's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall
survive until the Securities of an applicable Series are no longer outstanding.
Thereafter, the Company's obligations in paragraph 9 of the Securities of such
Series and Sections 7.07, 8.04 and 8.05 shall survive (as they relate to such
Series).
Section 8.03. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. government obligations in accordance with this Indenture
to the payment of principal of and interest on the Securities of the defeased
Series.
31
Section 8.04. Repayment to the Company.
------------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years; 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 of general circulation in the City of New York
or mail to each such Holder 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 or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
general creditors unless applicable abandoned property law designates another
person and all liability of the Trustee or such Paying Agent with respect to
such money shall cease.
Section 8.05. Reinstatement.
-------------
If the Trustee is unable to apply any money or U.S. government obligations
in accordance with Section 8.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities relating to the Series shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee is permitted to apply all such money or U.S. government
obligations in accordance with Section 8.01; provided, however, that (a) if the
Company has made any payment of interest on or principal of any Securities of
the Series because of the reinstatement of their obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. government obligations held by the Trustee and
(b) unless otherwise required by any legal proceeding or any order or judgment
of any court or governmental authority, the Trustee shall return all such money
or U.S. government obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the Company's obligations
has occurred and continues to be in effect.
ARTICLE NINE
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
--------------------------
The Company and the Trustee may amend or supplement this Indenture or the
Securities of a Series without notice to or consent of any Securityholder of
such Series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
32
(3) to provide that specific provisions of this Indenture shall not
apply to a Series not previously issued;
(4) to create a Series and establish its terms;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities; and
(6) to make any other change that does not adversely affect the rights
of Securityholders.
After an amendment under this Section 9.01 becomes effective, the Company
shall mail notice of such amendment to the Securityholders.
Section 9.02. With Consent of Holders.
-----------------------
The Company and the Trustee may amend or supplement this Indenture or the
Securities of a Series without notice to any Securityholder of such Series but
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each such Series affected by the
amendment. Each such Series shall vote as a separate class. The Holders of a
majority in principal amount of the outstanding Securities of any Series may
waive compliance by the Company with any provision of the Securities of such
Series or of this Indenture relating to such Series without notice to any
Securityholder. Without the consent of each Securityholder of a Series
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the provisions (including related definitions)
with respect to redemption of Securities pursuant to Article Three
hereof or with respect to any obligations on the part of the
Company to offer to purchase or to redeem Securities of a Series
pursuant to the Authorizing Resolution or supplemental indenture
pertaining to such Series;
(4) modify the ranking or priority of the Securities of any Series;
(5) make any change in Sections 6.04, 6.07 or this Section 9.02;
(6) waive a continuing Default or Event of Default in the payment of
the principal of or interest on any Security; or
33
(7) make any Security payable at a place or in money other than that
stated in the Security, or impair the right of any Securityholder
to bring suit as permitted by Section 6.07.
An amendment of a provision included solely for the benefit of one or more
Series does not affect the interests of Securityholders of any other Series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed supplement, but it shall be
sufficient if such consent approves the substance thereof.
After the issuance of any Securities, an amendment under this Section or
under Section 9.01 may not make any change that adversely affects in any
material respect the rights under Article 11 of the holders of Senior
Indebtedness, unless such holders of Senior Indebtedness consent to the change.
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
---------------------------------
A consent to an amendment, supplement or waiver by a Holder shall bind the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. Subject to the following paragraph, any
such Holder or subsequent Holder, however, may revoke the consent as to his
Security or portion of a Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities of any Series entitled to
consent to any amendment, supplement or waiver, which record date shall be at
least 10 days prior to the first solicitation of such consent. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (1) through
(7) of Section 9.02, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security; provided, that any such waiver shall not
34
impair or affect the right of any Holder to receive payment of principal of and
interest on a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
Section 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security, the
Company may require the Holder of the Security to deliver it to the Trustee, at
which time the Trustee shall place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 9.06. Trustee to Sign Amendments, etc.
-------------------------------
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may but need not sign it.
In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE TEN
Miscellaneous
Section 10.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02. Notices.
-------
Any order, consent, notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
35
if to the Company:
KEY PRODUCTION COMPANY, INC.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Attention: Chief Financial Officer
if to the Trustee:
____________________________
____________________________
____________________________
____________________________
Telecopy No.: ________________
Attention: ___________________
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail at his address as it appears on the registration books
of the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it except that notice to the
Trustee shall only be effective upon receipt thereof by the Trustee.
If the Company mails notice or communications to the Securityholders, it
shall mail a copy to the Trustee at the same time.
Section 10.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
36
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants, compliance
with which constitutes a condition precedent, if any, provided
for in this Indenture relating to the proposed action or
inaction, have been complied with and that any such section does
not conflict with the terms of the Indenture.
Section 10.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for its
functions.
Section 10.07. Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in Denver, Colorado and New York, New York are not
required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period. A
"Business Day" is any day other than a Legal Holiday.
37
Section 10.08. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture and the
Securities of each Series.
Section 10.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.10. No Recourse Against Others.
--------------------------
All liability described in paragraph 12 of the Securities of any director,
officer, employee or stockholder, as such, of the Company is waived and
released.
Section 10.11. Successors and Assigns.
----------------------
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors and assigns.
Section 10.12. Duplicate Originals.
-------------------
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 10.13. Severability.
------------
In case any one or more of the provisions contained in this Indenture or in
the Securities of a Series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities.
ARTICLE ELEVEN
Subordination
Section 11.01. Agreement to Subordinate.
------------------------
The Company agrees, and each Securityholder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Indebtedness and that the subordination is for the
benefit of the holders of Senior Indebtedness.
38
Section 11.02. Certain Definitions.
-------------------
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Senior Indebtedness" means all Indebtedness (present or future) created,
incurred, assumed or guaranteed by the Company (and all renewals, extensions or
refundings thereof), unless the instrument under which such Indebtedness is
created, incurred, assumed or guaranteed provides that such Indebtedness is not
senior or superior in right of payment to the Securities. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to any of its subsidiaries, (ii) any trade
payables of the Company or (iii) guarantees by the Company or any of its
Subsidiaries of Indebtedness (a) outstanding at the date hereof or (b) which may
be outstanding in the future, except that Senior Indebtedness shall include any
guarantees as may be listed in a supplemental indenture and any other present
and future guarantees that provide by their terms that they constitute Senior
Indebtedness.
Section 11.03. Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its Property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the principal of and interest
(including interest accruing after the commencement of any such
proceeding) to the date of payment on the Senior Indebtedness
before Securityholders shall be entitled to receive any payment
of principal of or interest on Securities; and
(2) until the Senior Indebtedness is paid in full in cash, any
distribution to which Securityholders would be entitled but for
this Article shall be made to holders of Senior Indebtedness as
their interests may appear, except that Securityholders may
receive securities that are subordinated to Senior Indebtedness
to at least the same extent as the Securities.
For purposes of this Article 11, a distribution may consist of cash,
securities or other property, by set-off or otherwise.
Section 11.04. Default on Senior Indebtedness.
------------------------------
Upon the final maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all such Senior Indebtedness shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Indebtedness, before any payment is made by the
Company or any person acting on behalf of the Company on account of the
principal or interest of the Securities.
39
The Company may not pay principal of or interest on the Securities and may
not acquire any Securities for cash or property (other than capital stock of the
Company or other securities of the Company that are subordinated to Senior
Indebtedness to at least the same extent as the Securities) if a default on
Senior Indebtedness occurs and is continuing that permits holders of such Senior
Indebtedness to accelerate its maturity.
The Company shall resume payments on the Securities and may acquire them,
if this Article otherwise permits the payment or acquisition at that time, when
the default is cured or waived.
Section 11.05. Acceleration of Securities.
--------------------------
If payment of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Indebtedness of the
acceleration. The Company shall pay the Securities when 180 days pass after the
acceleration occurs if this Article permits the payment at that time; provided,
however, that if no Senior Indebtedness is outstanding at the time of such
acceleration, the Company shall pay the Securities in accordance with the
provisions of Article 6.
Section 11.06. When Distributions Must Be Paid Over.
------------------------------------
In the event that the Company shall make any payment to the Trustee on
account of the principal or interest on the Securities at a time when such
payment is prohibited by Section 11.03 or 11.04, such payment shall be held by
the Trustee in trust for the benefit of, and shall forthwith be paid over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their Representative under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in full
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
If a distribution is made to Securityholders that because of this Article
should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
Section 11.07. Notice by the Company.
---------------------
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of principal of or
interest on the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior
Indebtedness provided in this Article. Nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
40
Section 11.08. Subrogation.
-----------
After all Senior Indebtedness is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the
Securityholders have been applied to the payment of Senior Indebtedness. A
distribution made under this Article to holders of Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the Company
and Securityholders, a payment by the Company on Senior Indebtedness.
Section 11.09. Relative Rights.
---------------
This Article defines the relative rights of Securityholders and holders of
Senior Indebtedness. Nothing in this Indenture shall: (1) impair, as between
the Company and Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on the Securities
in accordance with their terms;
(2) affect the relative rights of Securityholders and creditors of
the Company, other than holders of Senior Indebtedness; or
(3) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default or Event of Default, subject
to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Securityholders.
If the Company fails to pay principal of or interest on a Security on the
due date because of this Article, the failure is still a Default or Event of
Default.
Section 11.10. Subordination May Not Be Impaired by the Company.
------------------------------------------------
No right of any holder of Senior Indebtedness to enforce the subordination
of the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 11.11. Distribution or Notice to the Representative.
--------------------------------------------
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness pursuant to this Article 11, the distribution may be made
and the notice given to their Representative.
Section 11.12. Rights of the Trustee and Paying Agent.
--------------------------------------
Notwithstanding any provision of this Article 11 or any other provision of
this Indenture, the Trustee and Paying Agent shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee or a Paying Agent or the taking of any other
action (pursuant to this Article 11) by the Trustee or a Paying Agent
41
unless and until the Trustee or such Paying Agent, as the case may be, shall
have received at its office specified in Section 10.02 written notice thereof
from the Company, a Representative or a holder of Senior Indebtedness and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Sections 7.01 and 7.02, and such Paying Agent, shall be entitled
in all respects conclusively to assume that no such facts exist. The Trustee or
Paying Agent may continue to make payments on the Securities unless it receives
such a notice at least three business days prior to the date upon which payment
is due.
The Trustee shall be entitled to rely reasonably in good faith on the
delivery to it of a written notice by a person representing himself, herself or
itself to be a Representative or a holder of Senior Indebtedness to establish
that such notice has been given by a Representative or a holder of such Senior
Indebtedness. Only the Company, a Representative or a holder of Senior
Indebtedness that has no Representative may give the notice.
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 11, 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 11, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the rights of such person to receive such payment.
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the Holders of the Securities 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, liquidating trustee, Custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, 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 thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 11.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
Section 11.13. No Fiduciary Duty to Holders of Senior Indebtedness.
---------------------------------------------------
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee or Paying Agent. Neither the Trustee
nor the Paying Agent shall be deemed to owe any fiduciary duty to the holders of
such Senior
42
Indebtedness and, subject to the provisions of Section 7.02, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it shall, in the
absence of bad faith, pay over or deliver to holders of Securities, the Company
or any other person monies or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article 11 or otherwise.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
Dated:____________________, ____ KEY PRODUCTION COMPANY, INC.
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
Dated: ____________________, _____ __________________________, as
Trustee
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
(SEAL)
EXHIBIT A
No._________________ CUSIP No.________________:
_________________________________[Title of Security]
KEY PRODUCTION COMPANY, INC., a Delaware corporation promises to pay to
______________ or registered assigns the principal sum of
_________________________[Dollars] on ____________________
______________________________________[Title of Security] Interest Payment
Dates:________________________ and ________________________ Record Dates
_____________________________ and _____________________________.
Authenticated: _______________________
Dated: __________________________
A-1
KEY PRODUCTION COMPANY, INC.
By: ________________________
Title: _______________________
By: ________________________
Title: _______________________
____________________________
as Trustee, certifies that
this is one of the Securities
referred to in the within
mentioned Indenture.
By: ________________________
Title: _______________________
Authorized Signatory
KEY PRODUCTION COMPANY, INC.
____________________________
[Title of Security]
A-2
1. Interest.
KEY PRODUCTION COMPANY, INC. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semiannually on
_______________________and ___________of each year until the principal is paid
or made available _________________________ for payment. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or duly provided for or, if no interest has been paid, from _________________,
19__; provided that, if there is no existing default _________________________
in the payment of interest, and if this Security is authenticated between a
record date referred to on the face hereof and the next succeeding interest
payment date, interest shall accrue from such interest payment date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
[Provisions as to the right of the Company to defer interest, if any, may be set
forth here. ]
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest, if any, which will be paid on such special payment
date to Holders of record on such special record date as may be fixed by the
Company) to the persons who are registered Holders of Securities at the close of
business on the [Insert record dates]. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar.
Initially, ______________________ (the "Trustee") will act as Paying Agent
and _______________________ Registrar. The Company may change or appoint any
Paying Agent, Registrar or co-Registrar without notice. The Company or any of
its Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as of
_______________, ____ ("Indenture") among the Company and the Trustee. The
terms __________________ of the Securities include those stated in the Indenture
(including those terms set forth in the Authorizing Resolution or supplemental
indenture pertaining to the Securities of the Series of which this Security is a
part) and those made part of the Indenture by reference to the Trust Indenture
Act of 1939 ("TIA") as in effect on the date of the Indenture. The Securities
are subject to all such terms, and Securityholders are referred to the Indenture
and the Act for a statement of them.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the applicable Authorizing Resolution
or supplemental indenture. Requests may be made to: Key Production Company,
Inc., 000 Xxxxxxxxxxx Xx., Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000-0000, Attention:
Secretary.
A-3
5. Optional Redemption.
The Company may redeem the Securities at any time on or after
______________, in whole or in part, at the following redemption prices
__________________________ (expressed as a percentage of their principal amount)
together with interest accrued and unpaid to the date fixed for redemption:
If redeemed during the Twelve-Month period commencing on
_____________and ending on ______________________in each of the
____________________________ following years Percentage
____________________________________________________________.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder of Securities to be redeemed at
his registered address. Securities in denominations larger than $1,000 may be
redeemed in part. On and after the redemption date, interest ceases to accrue
on Securities or portions of them called for redemption; provided, that if the
Company shall default in the payment of such Security at the redemption price
together with accrued interest, interest shall continue to accrue at the rate
borne by the Securities.
[Insert provisions relating to redemption at option of Holders, if any]
6. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities by presentation of such Securities to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of other denominations. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Security selected
for redemption, except the unredeemed part thereof if the Security is redeemed
in part, or transfer or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
7. Persons Deemed Owners.
The registered Holder of this Security shall be treated as the owner of it
for all purposes.
8. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at its
request. After that, Holders entitled to the money must look to the Company for
payment unless an abandoned property law designates another person.
A-4
9. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities of each Series affected by the
amendment and any past default or compliance with any provision relating to any
Series of the Securities may be waived in a particular instance with the consent
of the Holders of a majority in principal amount of the outstanding Securities
of such Series. Without the consent of any Securityholder, the Company 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 certificated Securities, to create a Series and
establish its terms, or to make any other change, provided such action does not
adversely affect the rights of any Securityholder.
10. Successor Corporation.
When a successor corporation assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor corporation will be
released from those obligations.
11. Trustee Dealings With Company.
____________________________, the Trustee under the Indenture, in its
individual or _________________________ any other capacity, may make loans
to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee.
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 the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
13. Discharge of Indenture.
The Indenture contains certain provisions pertaining to defeasance, which
provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
A-5
15. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM ( tenants in common), TENANT (tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (custodian), and U/G/M/A (Uniform Gifts to Minors Act).
16. Subordination.
To the extent set forth in Article 11 of the Indenture, the Securities are
subordinated to Senior Indebtedness, which generally is any Indebtedness
outstanding on the date of the Indenture or Indebtedness thereafter created,
incurred, assumed or guaranteed by the Company and all renewals, extensions and
refundings thereof except Indebtedness that expressly provides that it is not
senior to or superior in right of payment to the Securities. Senior
Indebtedness does not include Indebtedness of the Company to any of its
subsidiaries, trade payables of the Company and certain Indebtedness of others
guaranteed by the Company. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect.
ASSIGNMENT FORM
If you, the Holder, want 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 ID number)
______________________________
______________________________
______________________________
(Print or type assignee's
name, address, and zip code)
and irrevocably appoint: _________________________________ 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 other side of
this Security)
Guarantee: ____________________________
A-6
