EXHIBIT 4.2
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FORM OF
JUNIOR SUBORDINATED
INDENTURE
Among
Vintage Petroleum, Inc.
and
[ ],
as Trustee
Dated as of [ ]
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TABLE OF CONTENTS/1/
Page
PARTIES.................................................................1
RECITALS
Purpose of Indenture....................................1
Compliance with legal
requirements............................................1
Purpose of and consideration
for Indenture...........................................2
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain terms defined
in the Trust Indenture Act of 1939,
as amended, or by reference therein
in the Securities Act of 1933, as
amended, to have the meanings
assigned therein.......................................2
Authenticating Agent......................................2
Board of Directors........................................2
Board Resolution..........................................2
Business Day..............................................2
Certificate...............................................3
Common Securities.........................................3
Company...................................................3
Corporate Trust Office....................................3
Declaration of Trust......................................3
Debenture or Debentures...................................3
Debentureholder...........................................3
Default...................................................3
Depositary................................................3
Event of Default..........................................4
Global Debenture..........................................4
Governmental Obligations..................................4
Guarantee.................................................4
Indenture.................................................4
Interest Payment Date.....................................5
Officers' Certificate.....................................5
Opinion of Counsel........................................5
Outstanding...............................................5
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/1/ This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its terms or
provisions.
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Person....................................................6
Predecessor Debenture.....................................6
Preferred Securities......................................6
Property Trustee..........................................6
Responsible Officer.......................................6
Security Exchange.........................................6
Senior Indebtedness.......................................6
Subsidiary................................................7
Trustee...................................................7
Trust Indenture Act.......................................8
Vintage Petroleum Capital Trust...........................8
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION
REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01 Designation, terms, amount, authentication and delivery
of Debentures.............................................8
SECTION 2.02 Form of Debentures and Trustee's certificate.............10
SECTION 2.03 Date and denominations of Debentures
and provisions for payment of principal,
premium and interest.....................................10
SECTION 2.04 Execution of Debentures..................................12
SECTION 2.05 Exchange of Debentures...................................14
(a) Registration and transfer of Debentures.............14
(b) Debentures to be accompanied
by proper instruments of transfer...................14
(c) Charges upon exchange, transfer or regulations of
Debenture...........................................15
(d) Restrictions on transfer or exchange at time
of redemption.......................................15
SECTION 2.06 Temporary Debentures.....................................15
SECTION 2.07 Mutilated, destroyed, lost or stolen Debentures..........16
SECTION 2.08 Cancellation of surrendered Debentures...................17
SECTION 2.09 Provisions of Indenture and Debentures for sole
benefit of parties and Debentureholders..................17
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SECTION 2.10 Appointment of Authenticating Agent.......................17
SECTION 2.11 Global Debenture..........................................18
(a) Authentication and Delivery; Legend..................18
(b) Transfer of Global Debenture.........................18
(c) Issuance of Debentures in definitive form............19
(d) .....................................................19
SECTION 2.12 CUSIP Numbers.............................................20
ARTICLE III
REDEMPTION OF DEBENTURES AND SINKING FUND
PROVISIONS
SECTION 3.01 Redemption of Debentures..................................20
SECTION 3.02 (a) Notice of redemption.................................20
(b) Selection of Debentures in case less
than all Debentures to be redeemed...................21
SECTION 3.03 (a) When Debentures called for redemption become
due and payable......................................22
(b) Receipt of new Debenture upon partial payment........22
SECTION 3.04 Sinking Fund for Debentures...............................22
SECTION 3.05 Satisfaction of Sinking Fund Payments with Debentures.....23
SECTION 3.06 Redemption of Debentures for Sinking Fund.................23
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any)
and interest on Debentures................................24
SECTION 4.02 Maintenance of office or agency for payment of Debentures,
designation of office or agency for payment, registration,
transfer and exchange of Debentures.......................24
SECTION 4.03 (a) Duties of payment agent..............................24
(b) Company as payment agent.............................25
(c) Holding sums of trust................................25
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SECTION 4.04 Appointment to fill vacancy in office of Trustee..........26
SECTION 4.05 Additional Covenants......................................26
ARTICLE V
DEBENTUREHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee
information as to names and
addresses of Debentureholders.............................26
SECTION 5.02 Trustee's treatment of Debenture holders list:
(a) Trustee to preserve information as to names and
addresses of Debentureholders received by it in
capacity of payment agent............................26
(b) Trustee may destroy list of Debentureholders on
certain conditions...................................26
(c) Trustee to make information as to names and
addresses of Debentureholders available to
"applicants" or mail communications to
Debentureholders in certain circumstances............26
(d) Procedure if Trustee elects not to make information
available to applicants..............................27
(e) Company and Trustee not accountable for disclosure
of information.......................................28
SECTION 5.03 Reports filed by Company:
(a) Annual and other reports to be filed by Company
with Trustee.........................................28
(b) Additional information and reports to be filed with
Trustee and Securities and Exchange Commission.......28
(c) Summaries of information and reports to be
transmitted by Company to Debentureholders...........29
(d) Annual Certificate to be furnished to Trustee........29
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SECTION 5.04 Reports transmitted by Trustee:
(a) Trustee to transmit annual report to
Debentureholders.....................................29
(b) Trustee to transmit certain further reports to
Debentureholders.....................................30
(c) Copies of reports to be filed with stock exchanges
and Securities and Exchange Commission...............31
ARTICLE VI
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined............................31
(b) Acceleration of maturity upon Event of Default.......33
(c) Waiver of default and rescission of declaration of
maturity.............................................33
(d) Restoration of former position and rights upon
curing default.......................................34
(e) Certain rights of holders of Preferred Securities....34
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole amount
due on Debentures on Default in payment of interest
or principal (and premiums, if any)..................34
(b) Trustee may recover judgment for whole amount due on
Debentures on failure of Company to pay..............35
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding............35
(d) Rights of action and of asserting claims may be
enforced by Trustee without possession
of Debentures........................................36
SECTION 6.03 Application of moneys collected by Trustee................36
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SECTION 6.04 Limitation on suits by holders of Debentures..............37
SECTION 6.05 (a) Remedies cumulative..................................38
(b) Delay or omission in exercise of rights not waiver
of default...........................................38
SECTION 6.06 Rights of holders of majority in principal amount of
Debentures to direct Trustee and to waive defaults........38
SECTION 6.07 Trustee to give notice of defaults known to it,
but may withhold in certain circumstances.................39
SECTION 6.08 Requirements of an undertaking to pay costs in certain
suits under Indenture or against Trustee..................40
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Trustee conduct:
(a) Upon event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and
use same degree of care and skill in their exercise,
as prudent individual would use......................41
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in
this section.........................................41
(1) Prior to Event of Default and after the curing
of all Events of Default which may have occurred..41
(i) Trustee not liable except for performance of
duties specifically set forth.....................41
(ii) In absence of bad faith, Trustee may conclusively
rely on certificates or opinions furnished it
hereunder, subject to duty to examine the same if
specifically required to be furnished to it.......42
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(2) Trustee not liable for error......................42
(3) Trustee not liable for actions taken at the
direction of holders..............................42
(4) Trustee not required to expend funds in certain
circumstances without indemnity...................42
(5) Liability provisions are subject to Article VII...42
SECTION 7.02 Subject to provisions of
Section 7.01:
(a) Trustee may rely on documents believed genuine and
properly signed or presented.........................43
(b) Sufficient evidence by certain instruments
provided for.........................................43
(c) Trustee may rely on Officer's Certificate............43
(d) Trustee may consult with counsel and act on advice or
Opinion of Counsel...................................43
(e) Trustee may require indemnity from Debentureholders..43
(f) Trustee not liable for actions in good faith
believed to be authorized............................44
(g) Trustee not bound to investigate facts or matters
stated in certificates, etc., unless requested in
writing by Debentureholders..........................44
(h) Trustee may act through agents.......................44
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or in
Debenture............................................44
(b) No representations by Trustee as to validity of
Indenture or of Debentures...........................45
(c) Trustee not accountable for use of Debentures or
proceeds.............................................45
SECTION 7.04 Trustee, paying agent or Debenture Registrar may own
Debentures................................................45
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SECTION 7.05 Moneys received by Trustee to be held in trust without
interest..................................................45
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement
and indemnity........................................45
(b) Obligations to Trustee to be secured by lien prior to
Debentures...........................................46
(c) Trustee's expenses in connection with bankruptcy are
expenses of administration...........................46
(d) Company's obligations under 7.06 survive.............46
SECTION 7.07 Right of Trustee to rely on certificate of officers of
Company where other evidence specifically prescribed......46
SECTION 7.08 (a) Trustee acquiring conflicting interest to eliminate
conflict or resign...................................46
(b) Notice to Debentureholders in case of failure to
comply with subsection (a)...........................47
(c) Trustee resignation not required under certain
circumstances........................................47
SECTION 7.09 Requirements for eligibility of Trustee...................47
SECTION 7.10 (a) Resignation of Trustee and appointment of
successor............................................48
(b) Removal of Trustee by Company or by court on
Debentureholders' application........................48
(c) Removal of Trustee by holders of majority in
principal amount of Debentures.......................49
(d) Time when resignation or removal of Trustee
effective............................................49
(e) One Trustee for each series..........................49
SECTION 7.11 (a) Acceptance by successor to Trustee...................49
(b) Trustee with respect to less than all series.........50
(c) Company to confirm Trustee's rights..................51
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(d) Successor Trustee to be qualified....................51
(e) Notice of succession.................................51
SECTION 7.12 Successor to Trustee by merger, consolidation or
succession to business....................................51
SECTION 7.13 (a) Limitations on rights of Trustee as a creditor to
obtain payment of certain claims within four months
prior to default or during default, or to realize on
property as such creditor thereafter.................52
(b) Certain creditor relationships excluded..............55
(c) Definition of certain terms..........................55
ARTICLE VIII
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by Debentureholders...................56
SECTION 8.02 Proof of execution of instruments and of holding
of Debentures.............................................57
SECTION 8.03 Who may de deemed owners of Debentures....................58
SECTION 8.04 Debentures owned by Company or controlled or controlling
companies disregarded for certain purposes................58
SECTION 8.05 Instruments executed by Debentureholders bind future
holders...................................................58
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be entered
into without consent of Debentureholders..................59
SECTION 9.02 Modification of Indenture with consent of
Debentureholders..........................................60
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SECTION 9.03 Effect of supplemental indentures.........................62
SECTION 9.04 Debentures may bear notation of changes by supplemental
indentures................................................62
SECTION 9.05 Opinion of Counsel........................................63
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01 Company May Consolidate, Etc. Only on Certain Terms......63
SECTION 10.02 Successor Corporation Substituted........................63
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture..................64
SECTION 11.02 Application by Trustee of Funds Deposited for Payments of
Debentures...............................................67
SECTION 11.03 Application by Trustee of funds deposited for payment
of Debentures............................................67
SECTION 11.04 Repayment of moneys held by paying agent.................67
SECTION 11.05 Repayment of moneys held by Trustee......................68
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors of
Company exempt from individual liability.................68
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture.....69
SECTION 13.02 Acts of board, committee or officer of successor
company valid............................................69
SECTION 13.03 Surrender of powers of Company...........................69
SECTION 13.04 Required notices or demands may be served by mail........69
SECTION 13.05 Indenture and Debentures to be construed in accordance
with laws of the State of New York.......................69
SECTION 13.06 (a) Officers' Certificate and Opinion of Counsel to be
furnished upon applications or demands by Company...70
(b) Statements to be included in each certificate or
opinion with respect to compliance with condition
or covenant.........................................70
SECTION 13.07 Payments due on Sundays or holidays......................70
SECTION 13.08 Provisions required by Trust Indenture Act of 1939 to
control..................................................70
SECTION 13.09 Execution in counterparts................................71
SECTION 13.10 Separability of indenture provisions.....................71
SECTION 13.11 Assignment by Company to subsidiary......................71
SECTION 13.12 Holders of Preferred Securities as third party
beneficiaries of this Indenture; holders of Preferred
Securities may institute legal proceedings against the
Company in certain cases.................................71
ARTICLE XIV
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement to Subordinate.................................72
SECTION 14.02 Payment Over of Proceeds Upon Dissolution, etc...........72
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SECTION 14.03 Trustee to Effectuate Subordination......................75
SECTION 14.04 Trustee Not Charged with Knowledge of Prohibition........75
SECTION 14.05 Rights of Trustee as Holder of Senior Indebtedness.......76
SECTION 14.06 Trustee Not Fiduciary for Holders of
Senior Indebtedness......................................76
SECTION 14.07 Article Applicable to Paying Agents......................76
ACCEPTANCE OF TRUST BY TRUSTEE..........................................77
SIGNATURES AND SEALS....................................................77
ACKNOWLEDGMENTS.........................................................77
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JUNIOR SUBORDINATED INDENTURE (this "Indenture")
dated as of [ ], between Vintage Petroleum, Inc., a
corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes referred to
as the "Company"), and [ ], a New York banking
corporation, as Trustee (hereinafter sometimes referred
to as the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company has fully
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debentures (hereinafter referred to as the "Debentures"),
in an unlimited aggregate principal amount to be issued from time to time in one
or more series in accordance with the terms of this Indenture, as registered
Debentures without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication to be
borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture; and
WHEREAS all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and delivered by
the Trustee in accordance with the terms of this Indenture, the legal, valid and
binding obligations of the Company, and to make this Indenture a valid indenture
and agreement of the Company in accordance with its terms, have been done and
performed or will be done and performed prior to the issuance of such
Debentures, and the execution of this Indenture has been and the issuance
hereunder of the Debentures has been, or will be prior to issuance, in all
respects duly authorized, and the Company, in the exercise of the legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures.
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NOW, THEREFORE, in order to declare the terms and conditions upon
which the Debentures are, and are to be, authenticated, issued and delivered,
and in consideration of the premises, and of the acquisition and acceptance of
the Debentures by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions of
this Indenture) of the respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any one Debenture over any
other by reason of priority in the time of issue, sale or negotiation thereof,
or otherwise, except as provided herein, as follows:
ARTICLE I
Definitions
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SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture, any resolution of the Board of Directors of
the Company and of any indenture supplemental hereof shall have the respective
meanings specified in this Section. All other terms used in this Indenture
which are defined in the Trust Indenture Act of 1939, as amended, or which are
by reference in such Act defined in the Securities Act of 1933, as amended
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
instrument.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debentures, as the case may be, appointed with
respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
"Board of Directors" means the Board of Directors of the Company, or
any committee of such Board duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Company to have been adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Trustee.
"Business Day", with respect to any series of Debentures, means any
day other than a Saturday, Sunday or
3
any other day on which banking institutions in the City and State of New York,
are authorized or required by law to close.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
13.06.
"Common Securities" means the common undivided beneficial interests in
the assets of the applicable Vintage Petroleum Capital Trust.
"Company" means Vintage Petroleum, Inc., a corporation duly organized
and existing under the laws of the State of Delaware, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at [ ]
Attention: [ ].
"Declaration of Trust" means the Declaration of Trust of the Vintage
Petroleum Capital Trust, if any, specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01.
"Debenture" or "Debentures" means any Debenture or Debentures, as the
case may be, authenticated and delivered under this Indenture.
"Debentureholder", "holder of Debentures", "registered holder", or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept for
such purpose in accordance with the terms of this Indenture.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Debentures of any series for which
the Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing
4
agency under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Debentures of a particular
series, any event specified in Section 6.01(a), continued for the period of
time, if any, therein designated.
"Global Debenture" means, with respect to any series of Debentures, a
Debenture executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of, or interest on,
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided that (except as required by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of, or interest on, the Governmental Obligation evidenced by such
depositary receipt.
"Guarantee" means the guarantee, if any, that the Company may enter
into that operates directly or indirectly for the benefit of holders of
Preferred Securities issued by a Vintage Petroleum Capital Trust.
"Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented,
including for all purposes of this instrument, as amended or supplemented, the
provisions
5
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument, as amended or supplemented.
"Interest Payment Date" when used with respect to any installment of
interest on a Debenture of a particular series means the date specified in such
Debenture or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Debentures of that series is due and payable.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice-Chairman of the Board, the President or any Vice President
and by the Treasurer or any Assistant Treasurer or the Controller or any
Assistant Controller or the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of, or counsel for, the Company and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by the provisions
thereof.
"Outstanding", when used with reference to Debentures of any series,
subject to the provisions of Section 8.01, means, as of any particular time, all
Debentures of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debentures theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b) Debentures or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust for the holders of such Debentures by the Company
(if the Company shall act as its own paying agent); provided, however, that if
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such Debentures or portions of such Debentures are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
III provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Debentures in lieu of, or in substitution for, which
other Debentures shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided beneficial
interests in the assets of the applicable Vintage Petroleum Capital Trust.
"Property Trustee" means the entity performing the function of the
Property Trustee under the applicable Declaration of Trust of a Vintage
Petroleum Capital Trust.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee responsible for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of, and
familiarity with, the particular subject.
"Security Exchange" when used with respect to the Debentures of any
series which are held as trust assets of a Vintage Petroleum Capital Trust
pursuant to the Declaration of Trust of such Vintage Petroleum Capital Trust
means the distribution of the Debentures of such series by such Vintage
Petroleum Capital Trust in exchange for the Preferred Securities and Common
Securities of such Vintage Petroleum Capital Trust in dissolution of such
Vintage Petroleum Capital Trust pursuant to the Declaration of Trust of such
Vintage Petroleum Capital Trust.
"Senior Indebtedness" means (i) the principal of, premium, if any, and
accrued and unpaid interest on (a) indebtedness of the Company for money
borrowed, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, (b) guarantees by the Company of
indebtedness for money borrowed by any other Person, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
(c) indebtedness evidenced by notes, debentures, bonds or
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other instruments of indebtedness for the payment of which the Company is
responsible or liable, by guarantees or otherwise, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
and (d) obligations of the Company under any agreement to lease, or any lease
of, any real or personal property, whether outstanding on the date of execution
of this Indenture or thereafter created, incurred or assumed, (ii) any other
indebtedness, liability or obligation, contingent or otherwise, of the Company
and any guarantee, endorsement or other contingent obligation of the Company in
respect of any indebtedness, liability or obligation, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
and (iii) modifications, renewals, extensions and refundings of any such
indebtedness, liabilities, obligations or guarantees; unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such indebtedness, liabilities, obligations or guarantees, or
such modification, renewal, extension or refunding thereof, are not superior in
right of payment to the Debentures; provided, however, that Senior Indebtedness
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shall not include any obligation of the Company to any Subsidiary.
Notwithstanding anything to the contrary in this Indenture or the Debentures,
Senior Indebtedness shall not include any indebtedness of the Company which, by
its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to, or pari passu with, the Debentures.
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"Subsidiary" means any corporation, association or other business
entity of which a majority of the outstanding stock, having under ordinary
circumstances (not dependent upon the happening of a contingency) voting power
to elect a majority of the board of directors (or persons performing similar
functions) of such corporation, association or other business entity in
question, is at the time, directly or indirectly, owned or controlled by the
Company or by one or more Subsidiaries or by the Company and one or more
Subsidiaries; collectively, the "Subsidiaries".
"Trustee" means [ ], a New York banking
corporation, and, subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more than one person
acting in such capacity hereunder, "Trustee" shall mean each such person. The
term "Trustee" as used with respect to a particular series of the Debentures
means the trustee with respect to such series.
8
"Trust Indenture Act", means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument is executed; provided, however,
-------- -------
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vintage Petroleum Capital Trust" means such business trust created
under the laws of the State of Delaware specified in the applicable Board
Resolution or supplemental indenture establishing a particular series of
Debentures pursuant to Section 2.01 and to whom such Series of Debentures will
be sold.
ARTICLE II
Issue, Description, Terms, Execution,
-------------------------------------
Registration and Exchange of Debentures
---------------------------------------
Section 2.01. The aggregate principal amount of Debentures which may
be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series authorized in or pursuant to one
or more indentures supplemental hereto, prior to the initial issuance of
Debentures of a particular series. Prior to the initial issuance of Debentures
of any series, there shall be established in or pursuant to one or more
indentures supplemental hereto:
(1) the title of the Debentures of the series (which shall distinguish
the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the Debentures of
the series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of the
series);
(3) the date or dates on which the principal of the Debentures of the
series is payable and the right, if any, to extend such date or dates and
the conditions, if any, to such an extension;
9
(4) the rate or rates at which the Debentures of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension and the conditions, if any, to such an
extension;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debentures of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms
and conditions upon which, Debentures of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the form of the Debentures of the series, including the form of
the Certificate of Authentication for the series;
(10) if other than denominations of $50 or any integral multiple
thereof, the denominations in which the Debentures of the series shall be
issuable;
(11) whether the Debentures of the series are issuable as a Global
Debenture and, in such case, the identity of the Depositary for the
Debentures of the series.
(12) any and all other terms with respect to the Debentures of the
series (which terms shall not be inconsistent with the terms of this
Indenture);
(13) if the Debentures of the series are to be deposited as trust
assets in a Vintage Petroleum Capital Trust, the name of the applicable
Vintage
10
Petroleum Capital Trust (which shall distinguish such statutory business
trust from any and all other Vintage Petroleum Capital Trusts) into which
the Debentures of the series are to be deposited as trust assets and the
date of its Declaration of Trust;
(14) any condition to, or restriction on, the transferability of the
Debentures; and
(15) whether the Debentures may be converted into or exchanged for
common stock, preferred stock, indebtedness or securities of any kind of
the Company or any third party.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any indenture supplemental hereto.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Debentures of that series
may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $[ ] or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debt, at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Debenture shall be dated the
date of its authentication. Interest on the Debentures shall be computed on the
basis of a 360-day year of twelve 30-day months.
11
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name such
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Debenture of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date for Debentures of that series and on or
prior to such Interest Payment Date, interest on such Debenture will be paid
upon presentation and surrender of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of that
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Debenture and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 20 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each Debentureholder at his or her address
as it appears in the Debenture Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date
12
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the persons in whose names such Debentures (or their Predecessor
Debentures) are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in one or more indentures supplemental
hereto establishing the terms of any series of Debentures pursuant to Section
2.01, the term "regular record date" as used in this Section with respect to a
series of Debentures with respect to any Interest Payment Date for such series
shall mean either (x) the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant to
Section 2.01 shall occur, if such Interest Payment Date is the first day of a
month, or (y) the first day of the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or not such date
is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of, or in exchange for, or
in lieu of, any other Debenture of such series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. Subject to the provisions of Section 2.06, the
Debentures shall be printed, lithographed or engraved on steel engraved borders
or produced by any combination of these methods or may be produced in any other
manner, as the proper officers of the Company may determine, and shall be signed
on behalf of the Company by the Chairman
13
or Vice Chairman of its Board of Directors or its Chief Executive Officer,
President or one of its Vice Presidents, or its Treasurer or any Assistant
Treasurer under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. The signature of the Chairman, Vice Chairman, Chief
Executive Officer, President, any Vice President, the Treasurer or any Assistant
Treasurer and/or the signature of the Secretary or any Assistant Secretary in
attestation of the corporate seal, upon the Debentures, may be in the form of a
manual or facsimile signature of a present or any future Chairman, Vice
Chairman, President, Vice President, Treasurer or Assistant Treasurer and of a
present or any future Secretary or Assistant Secretary and may be imprinted or
otherwise reproduced on the Debentures and for that purpose the Company may use
the manual or facsimile signature of any person who shall have been a Chairman,
Vice Chairman, Chief Executive Officer, President, Vice President, Treasurer or
Assistant Treasurer or any person who shall have been a Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered, or disposed of, such person shall have ceased to be
the Chairman, Vice Chairman, Chief Executive Officer, President or a Vice
President, or the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, of the Company, as the case may be. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
Certificate of Authentication executed by the Trustee, or by any Authenticating
Agent appointed by the Trustee with respect to such Debentures, upon any
Debenture executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and made available for
delivery hereunder and that the holder is entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company in the form of an Officers' Certificate for the authentication and
delivery of such Debentures, and
14
the other documents required by Section 13.06, and the Trustee, in accordance
with such written order, shall authenticate and make available for delivery such
Debentures.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debentures, this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged, upon
presentation thereof at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of New York, for other
Debentures of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall make
available for delivery in exchange therefor the Debenture or Debentures of the
same series which the Debentureholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Debenture Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debentures and the transfers of Debentures as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfers of Debentures
as herein provided shall be appointed as authorized by Board Resolution (the
"Debenture Registrar").
Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, the Company shall execute, the
Trustee shall authenticate and such office or agency shall make available for
delivery in the name of the transferee or transferees a new Debenture or
Debentures of the same series as the Debenture presented for a like aggregate
principal amount.
15
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required
by the Company or the Debenture Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Debenture
Registrar, duly executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debentures, or issue of new Debentures in case of partial
redemption of any series, but the Company may require payment by the
Debentureholder requesting an exchange or registration of transfer of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than in connection with exchanges made pursuant to Section 2.06, Section
3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, register the
transfer of or exchange any Debentures of a series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of all or less than all of the outstanding Debentures of such series
and ending at the close of business on the day of such mailing or (ii) register
the transfer of or exchange any Debentures so selected for redemption, in whole
or in part, except the unredeemed portion of any Debentures being redeemed in
part. The provisions of this Section 2.05 are, with respect to any Global
Debenture, subject to Section 2.11.
SECTION 2.06. Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and make
available for delivery, temporary Debentures (printed, lithographed or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Debentures, all as may be determined by the Company. Every temporary Debenture
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures of such series. Without unnecessary
delay the Company will execute and will furnish definitive Debentures of such
series and thereupon any or all temporary Debentures of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee
16
shall authenticate and such office or agency shall make available for delivery
in exchange for such temporary Debentures an equal aggregate principal amount of
definitive Debentures of such series, unless the Company advises the Trustee to
the effect that definitive Debentures need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Debentures of
such series shall be entitled to the same benefits under this Indenture as
definitive Debentures of such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon its request the Trustee
(subject as aforesaid) shall authenticate and make available for delivery, a new
Debenture of the same series bearing a number not contemporaneously Outstanding,
in exchange and substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Debenture and
of the ownership thereof. The Trustee may authenticate any such substituted
Debenture and make available for delivery the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Debenture which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Debenture, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Debenture) if
the applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save each of them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such Debenture and
of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or stolen
shall constitute an
17
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Debenture shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures of the same series duly issued
hereunder. All Debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debentures shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On written request of the Company, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee.
If the Company shall otherwise acquire any of the Debentures, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures, express
or implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debentures, any legal or equitable right,
remedy or claim under, or in respect of, this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the holders
of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of
Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this Indenture to
the
18
authentication of Debentures by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or state authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If, pursuant to Section 2.01, the Company shall
establish that the Debentures of a particular series are to be issued as one or
more Global Debentures, then the Company shall execute, and the Trustee shall,
in accordance with Section 2.04, authenticate and deliver, one or more Global
Debentures which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner
19
provided in Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by the
Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered, or in good standing, under the Exchange Act or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Debentures of such series, and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and make
available for delivery, Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of any series shall no longer be represented by
one or more Global Debentures and that the provisions of this Section 2.11 shall
no longer apply to the Debentures of such series. In such event, the Company
will execute and, subject to Section 2.05, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures of such series in definitive registered
form, without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture of such
series in exchange for such Global Debenture. Upon the exchange of a Global
Debenture for such Debentures in definitive registered form, without coupons, in
authorized denominations, the Global Debenture shall be canceled by the Trustee.
Any Debentures in definitive registered form issued in exchange for a Global
Debenture pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debentures to the Depositary for
delivery to the persons in whose names such Debentures are so registered.
(d) None of the Company, the Trustee, any paying agent or the
security registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of the beneficial ownership
20
interests of a Global Debenture or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Debentures
--------------
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Debentureholders but no
representation shall be made by the Company, the Trustee or any other Person as
to the correctness of such numbers either as printed on the Debentures or as
contained in any notice of redemption or exchange.
ARTICLE III
Redemption of Debentures and
----------------------------
Sinking Fund Provisions
-----------------------
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01.
SECTION 3.02. (a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debentures of any
series in accordance with the right reserved so to do, it shall give notice of
such redemption by mail, first class postage prepaid, not less than 30 nor more
than 60 days before the date fixed for redemption to holders of the Debentures
of the series to be redeemed at their last addresses as they shall appear upon
the Debenture Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Debentures of
such series or any other series. In the case of any redemption of Debentures
prior to the expiration of any restriction on such redemption provided in the
terms of such Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with any
such restriction.
Each such notice of redemption (which shall be irrevocable) shall
specify the date fixed for redemption and the redemption price at which
Debentures of that series are
21
to be redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company in
the Borough of Manhattan, the City and State of New York, upon presentation and
surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of a series are to be
redeemed, the notice to the holders of Debentures of that series to be redeemed
in whole or in part shall specify the particular Debentures to be so redeemed.
In case any Debenture is to be redeemed in part only, the notice which relates
to such Debenture shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the redemption date, upon surrender
of such Debenture, a new Debenture or Debentures of such series in principal
amount equal to the unredeemed portion thereof will be issued. If the Company
gives a notice of redemption in respect of Debentures of a series, then, by
12:00 noon, New York City time, on the date fixed for redemption, the Company
shall deposit irrevocably with the Trustee funds sufficient to pay the
applicable redemption price and shall give irrevocable instructions and
authority to pay such redemption price to the holders of Debentures of such
series.
(b) If less than all the Debentures of a series are to be redeemed,
the Company shall give the Trustee at least 45 days notice in advance of the
date fixed for redemption (unless a shorter notice shall be satisfactory to the
Trustee) as to the aggregate principal amount of Debentures of the series to be
redeemed, and thereupon the Trustee shall select, by lot or in any other manner
as it shall deem appropriate and fair in its discretion and which may provide
for the selection of a portion or portions (equal to $[ ] or any integral
multiple thereof) of the principal amount of such Debentures of a denomination
larger than $[ ], the Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debentures to be redeemed,
in whole or in part.
The Company may, if and whenever it shall so elect in accordance with
the terms of any series of Debentures established pursuant to Section 2.01, by
delivery of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in
22
the name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Debenture Register, transfer books or other records or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures of
the series to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to but not including the date fixed for
redemption and interest on such Debentures or portions of Debentures shall cease
to accrue on and after the date fixed for redemption, unless the Company shall
default in the payment of such redemption price and accrued interest with
respect to any such Debenture or portion thereof. On presentation and surrender
of such Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, said Debentures shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued
thereon to but not including the date fixed for redemption (but if the date
fixed for redemption is after the record date with respect to an Interest
Payment Date and on or prior to such Interest Payment Date, the interest
installment payable on such Interest Payment Date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified as contemplated by Section 2.01 for Debentures of
such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debentures for any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series.
SECTION 3.05. The Company (i) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may apply as a
credit Debentures of a series which have been redeemed, either at the election
of the Company pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debentures, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Debentures of such series required to be made
pursuant to the terms of such Debentures as provided for by the terms of such
series; provided that such Debentures have not been previously so credited.
--------
Such Debentures shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Debentures for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company (i) will deliver to the
Trustee an Officers' Certificate specifying (x) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of such series, and
(y) the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of such series pursuant to Section 3.05 and the basis for
such credit and (ii) will, together with such Officers' Certificate, deliver to
the Trustee any Debentures to be so delivered. Not less than 30 days before
each such sinking fund payment date, the Trustee shall select the Debentures to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the name
and at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Debentures shall be made
upon the terms and in the manner stated in Section 3.03.
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ARTICLE IV
Particular Covenants of the Company
-----------------------------------
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any), and interest on, the Debentures of
such series at the time and place and in the manner provided herein and
established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remain
Outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, The City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in this
Section 4.02, where (i) Debentures of that series may be presented for payment,
(ii) Debentures of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or upon
the Company in respect of the Debentures of that series and this Indenture may
be given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by its President or a
Vice President and delivered to the Trustee, designate some other office or
agency for any or all of such purposes. 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, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices and
demands.
SECTION 4.03. (a) If the Company shall appoint one or more paying
agents for all or any series of the Debentures, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to the Trustee
an instrument in which such paying agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any), or interest on, the
Debentures of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust for the
benefit of the persons entitled thereto;
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(2) that it will give the Trustee written notice of any failure by the
Company (or by any other obligor of such Debentures) to make any payment of
the principal of (and premium, if any), or interest on, the Debentures of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debentures, it will, on or before each due date of the
principal of (and premium, if any), or interest on, Debentures of that series,
set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest
so becoming due on Debentures of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of such action, or any failure (by it or any other
obligor on such Debentures) to take such action. Whenever the Company shall
have one or more paying agents for any series of Debentures, it will, prior to
each due date of the principal of (and premium, if any), or interest on, any
Debentures of that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04 and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the
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Trustee, such paying agent shall be released from all further liability with
respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. Additional Covenants. In the event Debentures are
---------------------
issued to a Vintage Capital Trust, for so long as any Preferred Securities
remain outstanding, the Company will not declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock or make any guarantee
payment with respect thereto if at such time (i) the Company shall be in default
with respect to its guarantee payments or other payment obligations under the
related Guaranty, (ii) there shall have occurred any Event of Default or (iii)
the Company shall have given notice of its selection of an extension period for
deferring the payment of interest on the Debentures and such period, or any
extension thereof, is continuing; provided, however, that the foregoing
-------- -------
restrictions will not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Company by way of issuance
of shares of its capital stock, (ii) any declaration of a dividend under a
shareholder rights plan or in connection with the implementation of a
shareholder rights plan, the issuance of capital stock of the Company under a
shareholder rights plan or the redemption, repurchase or exchange of any such
right distributed pursuant to a shareholder rights plan, (iii) payments of
accrued dividends by the Company upon the redemption, exchange or conversion of
any preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock, (iv) cash payments made by
the Company in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of the Company as may be
outstanding from time to time in accordance with the terms of such preferred
stock (v) payments under a Guaranty, or (vi) purchases of common stock related
to the issuance of common stock or rights under any of the Company's benefit
plans for its directors, officers or employees, or related to the issuance of
common stock or rights under a dividend reinvestment and stock purchase plan.
In addition, in the event Debentures are issued to a Vintage Capital Trust, for
so long as any Preferred Securities remain outstanding, the Company (i) will
remain the sole direct or indirect owner of all the outstanding Common
Securities and shall not cause or permit the Common Securities to be transferred
except to the extent such transfer is permitted under Section 9.01(c) of the
Declaration of Trust, provided that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities;
(ii) will comply fully with its obligations and agreements under the Declaration
of Trust; and (iii) not take any action which would cause the Vintage Capital
Trust to cease to be treated as a grantor trust for United States Federal income
tax purposes, except in connection with a distribution of Debentures as provided
in the Declaration of Trust.
ARTICLE V
Debentureholders Lists and Reports
----------------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Debentures as of such
regular record date; provided that the Company shall not be obligated to furnish
--------
or cause to be furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by the Company
and (b) at such other times as the Trustee may request in writing within 30 days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that no such list need be furnished for any series
-------- -------
for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of
27
Debentures of such series or holders of all Debentures with respect to their
rights under this Indenture or under such Debentures, and such application is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within five business days
after the receipt of such application, at its election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Debentures of such series or of all Debentures, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
(d) If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of such series or of all Debentures, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, a copy of the form of proxy or other communication which is
specified in the application of such applicants received pursuant to subsection
(c) of this Section 5.02, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of Debentures of such series or of all Debentures, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
28
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Debentureholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent nor any Debenture Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debentures in accordance with the provisions of
this Section, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under this Section.
SECTION 5.03. (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange, as may be prescribed
from time to time in such rules and regulations. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as
29
may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or by reputable overnight delivery service which provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
Outstanding, or on or before such other day in each calendar year as the Company
and the Trustee may from time to time agree upon, a Certificate of the principal
executive officer, principal financial officer, or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Debentures are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register, a brief report dated as of the preceding May 15,
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of, or any material change to, a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section 7.08;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the
30
Debentures, on any property or funds held or collected by it as Trustee if
such advances so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Debentures outstanding, determined in accordance
with Section 8.04, on the date of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Debentures, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration thereof, if any) which it
has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the Debenture
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Debentures of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
31
aggregate more than 10% of the principal amount of Debentures of such series
outstanding, determined in accordance with Section 8.04, at such time, such
report to be transmitted within 90 days after such advances.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to Debentures of
a particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Debentures of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; provided,
however, that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture supplemental hereto,
shall not constitute a default in the payment of interest;
(2) default in the payment of the principal of (or premium, if any,
on) any of the Debentures of that series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series;
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company with
respect to that series contained in such Debentures or otherwise
established with respect to that series of Debentures pursuant to Section
2.01 or contained in this Indenture (other than a covenant or agreement
which has been expressly established solely for the benefit of one or more
series of Debentures other than such series) for a period of 90 days after
the date on which written
32
notice of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given to
the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount
of the Debentures of that series at the time outstanding, determined in
accordance with Section 8.04;
(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(5) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action.
33
(b) If an Event of Default occurs and is continuing with respect to
Debentures of a particular series, unless the principal of all the Debentures of
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debentures of
that series then outstanding hereunder, determined in accordance with Section
8.04, by notice in writing to the Company (and to the Trustee if given by such
Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything contained in
this Indenture or in the Debentures of that series or established with respect
to that series pursuant to Section 2.01 to the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition that if, at
any time after the principal of the Debentures of a series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures of such series and the
principal of (and premium, if any, on) any and all Debentures of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal (and premium, if any), and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Debentures of such series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Debentures of such series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06, then the
holders of a majority in aggregate principal amount of the Debentures of such
series then outstanding, determined in accordance with Section 8.04, (subject
to, in the case of any series of Debentures held as trust assets of a Vintage
Petroleum Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of the holders of the Preferred Securities
and the Common Securities of such Vintage Petroleum Capital Trust as may be
required under the Declaration of Trust of such Vintage Petroleum Capital
Trust), by written notice to the Company and to the Trustee, may rescind and
annul such declaration and its consequences with respect to such series of
Debentures; but no such rescission and annulment shall extend to or shall affect
any
34
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures of a series under this Indenture and such proceedings
shall have been discontinued or abandoned because of rescission or annulment as
provided in (c) above or for any other reason or shall have been determined
adversely to the Trustee, then the Company and the Trustee shall be restored to
their former respective positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such
proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the Debentures
of any series, a Default with respect to the Debentures of such series shall
have occurred, the Company expressly acknowledges that under the circumstances
set forth in the applicable Declaration of Trust, any holder of Preferred
Securities of the applicable Vintage Petroleum Capital Trust may, to the extent
permitted by applicable law, enforce directly against the Company the applicable
Property Trustee's rights hereunder. In furtherance of the foregoing and for
the avoidance of any doubt, the Company acknowledges that, under the
circumstances described in the applicable Declaration of Trust, any such holder
of Preferred Securities, in its own name, in the name of the applicable Vintage
Petroleum Capital Trust or in the name of the holders of the Preferred
Securities issued by such Vintage Petroleum Capital Trust, may institute or
cause to be instituted a proceeding, including, without limitation, any suit in
equity, an action at law or other judicial or administrative proceeding, to
enforce the applicable Property Trustee's rights hereunder directly against the
Company as issuer of the applicable series of Debentures, and may prosecute such
proceeding to judgment or final decree, and enforce the same against the
Company.
SECTION 6.02. (a) The Company covenants that (1) in case default
shall be made in the payment of any installment of interest on any of the
Debentures of a series, or any payment required by any sinking or analogous fund
established with respect to such series as and when the same shall have become
due and payable, and such default shall have continued for a period of 30 days,
or (2) in case default shall be made in the payment of the principal of (or
premium, if any, on) any of the Debentures of a series when the same shall have
become due and payable, whether upon maturity of the Debentures of a series or
upon redemption or upon declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the
35
benefit of the holders of the Debentures of such series, the whole amount that
then shall have become due and payable on all Debentures of such series for
principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law and without
duplication of any other amounts paid by the Company in respect thereof) upon
overdue installments of interest at the rate per annum expressed in the
Debentures of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other obligor upon the
Debentures of such series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Debentures of such series
wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on the Debentures of any
series, or the creditors or property of either, the Trustee shall have the power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture at the date of
institution of such proceedings and for any additional amount which may become
due and payable by the Company or such other obligor after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Debentures of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of
36
such payments directly to such Debentureholders, to pay to the Trustee any
amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
any series, may be enforced by the Trustee without the possession of any of such
Debentures, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Debentures
of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures of any series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Debentureholder in any such
proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Debentures shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debentures of such series, and stamping
thereon the payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
37
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Debentures for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 6.04. No holder of any Debenture of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to Debentures of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Debentures of such series then outstanding,
determined in accordance with Section 8.04, shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by the holders and the Trustee, that no one or more holders
of Debentures of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures of such series. For the protection and enforcement of the provisions
of this Section, each and every Debentureholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal of (and
premium, if any)
38
and interest on such Debenture, as therein provided, on or after the respective
due dates expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder. In addition, as set forth in the
Declaration, any holder of Preferred Securities shall have the right to
institute suit for the enforcement of any such payment to such holder with
respect to Debentures having a principal amount equal to the aggregate
liquidation preference of the Preferred Securities held by such holder.
SECTION 6.05. (a) All powers and remedies given by this Article to
the Trustee or to the Debentureholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others thereof or of any other powers
and remedies available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debentures.
(b) No delay or omission by the Trustee or by any holder of any of
the Debentures to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04 (with, in the case of any series of Debentures held
as trust assets of a Vintage Petroleum Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such Vintage Petroleum Capital
Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust), shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with any
-------- -------
rule of law or with this Indenture or unduly prejudicial
39
to the rights of holders of Debentures of any other series at the time
outstanding (determined in accordance with Section 8.04) and not parties
thereto. Subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding, determined in accordance with
Section 8.04, affected thereby (with, in the case of any series of Debentures
held as trust assets of a Vintage Petroleum Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of holders
of the Preferred Securities and the Common Securities of such Vintage Petroleum
Capital Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust), may, on behalf of the holders of all of the Debentures
of such series, waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.01 with respect
to such series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the Debentures of such
series as and when the same shall become due (x) by the terms of such Debentures
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section 6.01(c))
or (y) as a result of a call for redemption of Debentures of such series. Upon
any such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debentures of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a particular series, transmit by mail, first-class
postage prepaid, to the holders of Debentures of such series, as their names and
addresses appear upon the Debenture Register, notice of all defaults with
respect to such series known to the Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the purpose
of this Section being hereby defined to be the events specified in subsections
(1), (2), (3), (4) and (5) of Section 6.01(a), not including any periods of
grace provided for therein and irrespective of the giving of
40
notice provided for by subsection (3) of Section 6.01(a)); provided that, except
--------
in the case of default in the payment of the principal of (or premium, if any),
or interest on, any of the Debentures of such series or in the payment of any
sinking fund installment established with respect to such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Debentures of
such series; provided further, however, that, in the case of any default of the
-------- ------- -------
character specified in Section 6.01(a)(3) with respect to Debentures of such
series, no such notice to the holders of the Debentures of such series shall be
given until at least 90 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under subsection (a)(1) or (a)(2) of Section 6.01 as long
as the Trustee is acting as paying agent for such series of Debentures or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Debentures by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, or by any Debentureholder, or group of Debentureholders, holding more
than 10% in aggregate principal amount of the Debentures of any series at the
time outstanding, determined in accordance with Section 8.04, or to any suit
instituted by any Debentureholder for the enforcement of the payment of the
principal of (premium, if any), or interest on, any Debenture of such series, on
or after the respective due dates expressed in such Debenture or established
pursuant to this Indenture.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or
41
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event
of Default with respect to Debentures of a series and after the curing of all
Events of Default with respect to Debentures of that series which may have
occurred, shall undertake to perform with respect to Debentures of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a series
has occurred (which has not been cured or waived), the Trustee shall exercise
with respect to Debentures of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
Debentures of a series and after the curing or waiving of all such Events
of Default which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee shall with respect
to Debentures of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to Debentures of such series except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
42
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Debentures of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same 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 stated therein;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of a majority in principal amount of the Debentures of any
series at the time outstanding, determined in accordance with Section 8.04,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Debentures of
such series;
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it; and
(5) whether or not therein expressly so provided, every provision of
this Indenture relating to the
43
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article VII.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the Chairman or the Vice
Chairman of the Board of Directors or the President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer or the Controller or any Assistant Controller (unless
other evidence in respect thereof is specifically prescribed herein);
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may in the absence of bad faith
on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligations to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of
this Indenture, unless such Debentureholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of
44
Default with respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of that series such
of the rights and powers vested in it by this Indenture, and to 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;
(f) the Trustee shall not be liable for any action taken or omitted to
be taken 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;
(g) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Debentures of the particular series outstanding affected thereby,
determined in accordance with Section 8.04; provided, however, that if the
-------- -------
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; if the Trustee makes such
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
45
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Debentures or of the proceeds of such Debentures,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any paying
agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Debentures with the same rights it would have if it were not Trustee, paying
agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04, all moneys
received by the Trustee shall until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred without negligence or bad faith on the part of
the Trustee and
46
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(4) or (5), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
(d) The Company's obligations under this Section 7.06 shall survive
the resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article XI of this Indenture and/or the termination of
this Indenture.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture in
reliance thereon.
SECTION 7.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in Section 310(b) of the Trust Indenture Act,
with respect to the Debentures of any series and if the Default to which such
conflicting interest relates has not been cured, duly waived or otherwise
eliminated, within 90 days after ascertaining that it has such conflicting
interest, it shall either eliminate such conflicting interest, except as
47
otherwise provided herein, or resign with respect to the Debentures of such
series in the manner and with the effect specified in Section 7.10 and the
Company shall promptly appoint a successor Trustee in the manner provided
herein.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, with respect to the Debentures of
any series the Trustee shall, within ten days after the expiration of such 90-
day period, transmit notice of such failure by mail, first-class postage
prepaid, to the Debentureholders of such series as their names and addresses
appear upon the Debenture Register.
(c) Except in the case of a default in the payment of the principal
of (or premium, if any), or interest on, any Debentures issued under this
Indenture, or in the payment of any sinking or analogous fund installment, the
Trustee shall not be required to resign as provided by this Section 7.08 if such
Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that (i) the default under
the Indenture may be cured or waived during a reasonable period and under the
procedures described in such application and (ii) a stay of the Trustee's duty
to resign will not be inconsistent with the interests of Debentureholders. The
filing of such an application shall automatically stay the performance of the
duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such an
appointment.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a corporation
or other person permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million dollars, and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report
48
of condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the Company,
serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed
may at any time resign with respect to the Debentures of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Debentureholders of
such series, as their names and addresses appear upon the Debenture Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures of such series, or any Debentureholder of that series who has been a
bona fide holder of a Debenture or Debentures for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a
49
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee
with respect to all Debentures and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the mailing
of such notice of removal, the Trustee so removed may petition any court of
competent jurisdiction for the appointment of a successor trustee with
respect to Debentures of such series, or any Debentureholder of that series
who has been a bona fide holder of a Debenture or Debentures for at least
six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding, determined in accordance with
Section 8.04, may at any time remove the Trustee with respect to such series and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debentures of one more series or all such series,
but at any time there shall be only one Trustee with respect to the Debentures
of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
50
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debentures of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debentures of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of that or those
51
series to which the appointment of such successor trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates, subject, to
the lien, if any, of the retiring Trustee provided for in Section 7.06.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in, and
confirming to, such successor trustee all such rights, power and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Debentureholders,
as their names and addresses appear upon the Debenture Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper of any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debentures shall
have been authenticated, but not made available for delivery, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and make available for
delivery the Debentures so authenticated
52
with the same effect as if such successor Trustee had itself authenticated such
Debentures.
SECTION 7.13. (a) Subject to the provisions of subsection (b) of
this Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three months prior to a
default, as defined in subsection (b) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Debentures and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
setoff which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in a case for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if
53
such property was so held prior to the beginning of such three month
period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Debentureholders and the holders of other indenture
securities in such manner that the Trustee, the Debentureholders and the holders
of other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Debentureholders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in a case for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or
54
applicable State law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or a case for reorganization is pending shall have jurisdiction (i)
to apportion between the Trustee, the Debentureholders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Debentureholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
55
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property other than cash which shall at any time be subject to the
lien, if any, of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Debentureholders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, subscription agent, fiscal agent or depositary, or
other similar capacity;
(4) any indebtedness created as a result of services rendered or
premises rented; or any indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a Company
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptance or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in full
of the principal of (or premium, if any) or interest upon any of the
Debenture or upon the other indenture securities when and as such
56
principal (or premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (C) under which a default
exists at the time of the apportionment of the funds and property held in
said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation.
(5) The term "Company shall mean any obligor upon any of the
Debentures.
ARTICLE VIII
Concerning the Debentureholders
-------------------------------
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or a specified percentage in aggregate principal amount of
the Debentures of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that, at the time of taking any such
action, the
57
holders of such majority or specified percentage of such series have joined
therein may be evidenced by any instrument or any number of instruments of
similar terms executed by the holders of Debentures of such series in person or
by agent or proxy appointed in writing and acceptable to the Trustee.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of outstanding Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Debentures of that series
shall be computed as of the record date; provided that no such authorization,
--------
agreement or consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Debentureholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register for Debentures of such series or by a certificate of the Debenture
Registrar with respect thereto.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
58
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of, or on account of,
the principal of, premium, if any, and (subject to Section 2.03) interest on,
such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures of a particular series have concurred
in any direction, consent or waiver under this Indenture, Debentures of that
series which are owned by the Company or any other obligor on the Debentures of
that series or by any Subsidiary of the Company or of such other obligor on the
Debentures of that series shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures of such series which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or a specified percentage in aggregate principal amount
of the Debentures of a particular series, any holder of a Debenture of that
series which is shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debenture. Except as aforesaid any such
59
action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture, and of any
Debenture issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard thereto is
made upon such Debenture. Any action required by the Indenture to be taken, and
that is taken, by the holders of the majority or a specified percentage in
aggregate principal amount of the Debentures of a particular series shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
contained herein or otherwise established with respect to the Debentures of
all or any series; or
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of
the Debentures of all or any series as the Board of Directors shall
consider to be for the protection of the holders of Debentures of all or
any series, and to make the occurrence, or the occurrence and continuance,
of a default in any of such additional covenants, restrictions, conditions
or provisions an Event of Default with respect to such series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of any
-------- -------
such additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an
60
immediate enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the holders of a
majority in aggregate principal amount of the Debentures of such series to
waive such default; or
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not be
inconsistent with the provisions of this Indenture and shall not adversely
affect the interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Debenture outstanding, determined in accordance with
Section 8.04, of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(e) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount
of the Debentures of each series affected by such supplemental indenture or
61
indentures at the time outstanding, determined in accordance with Section 8.04,
(and, in the case of any series of Debentures held as trust assets of a Vintage
Petroleum Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Vintage Petroleum Capital Trust as may be required
under the Declaration of Trust of such Vintage Petroleum Capital Trust), the
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures of such
series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall (i) extend the fixed maturity of any Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected or (ii)
reduce the aforesaid percentage of Debentures, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of each Debenture (and, in the case of any series of Debentures held as
trust assets of a Vintage Petroleum Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such Vintage Petroleum
Capital Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust) then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders (and, in
the case of any series of Debentures held as trust assets of Vintage Petroleum
Capital Trust and with respect to which a Security Exchange has not theretofore
occurred, such consent of holders of the Preferred Securities and the Common
Securities of such Vintage Petroleum Capital Trust as may be required under the
Declaration of Trust of such Vintage Petroleum Capital Trust), the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion
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but shall not be obligated to enter into such supplement indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to Debentures of the series affected thereby, be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject to in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures of
that series then Outstanding.
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SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel and the other documents, if any, required by
Section 13.06, as conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. The Company shall not consolidate with or merge with
or into any Person, or convey, transfer or lease all or substantially all its
assets, unless: (i) either (a) the Company shall be the continuing Person in the
case of a merger or (b) the resulting, surviving or transferee Person if other
than the Company (the "Successor Company") shall be a corporation organized and
existing under the laws of the United States, any State thereof or the District
of Columbia and the Successor Company shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the Debentures
according to their tenor, and this Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default would occur or be
continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any)
comply with this Indenture.
SECTION 10.02. In case of any consolidation or merger, or conveyance
or transfer of the assets of the Company as an entirety or virtually as an
entirety in accordance with Section 10.01, the Successor Company shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the predecessor corporation
shall be relieved of any further obligation under the Indenture and the
Debentures. The Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of the Successor
Company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have
64
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debentures which the Successor Company thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all such Debentures had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debentures appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Unclaimed Moneys
----------------
SECTION 11.01. (A) If at any time (a) the Company shall have paid or
caused to be paid the principal of, and interest on, all the Debentures of any
series outstanding hereunder (other than Debentures of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07) as and when the same shall have become due and payable, or (b)
the Company shall have delivered to the Trustee for cancellation all Debentures
of any series theretofore authenticated (other than any Debentures of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.07) or (c)) (i) all the Debentures of
any series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Company in accordance with Section 11.04)
or Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Debentures of such series on each date that
65
such principal or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Debentures of such series; and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and exchange
of Debentures of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Debentures, (iii) rights of holders of Debentures to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the
Debentureholders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the holders of Debentures of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, and (vi) the obligations of the Company under Section 4.02) and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture; provided that the rights of Holders of the Debentures to receive
--------
amounts in respect of principal of, and interest on, the Debentures held by them
shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Debentures are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures of each
series unless specifically otherwise provided in a supplemental indenture hereto
pursuant to Section 2.01. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debentures of a series on the date
of the deposit referred to in subparagraph (a) below, and the provisions of this
Indenture with respect to the Debentures of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Debentures of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Debentures,
66
(iii) rights of holders of Debentures to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the holders of Debentures to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the holders of
Debentures as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Company under Section 4.02) and the Trustee, at the expense of the Company,
shall at the Company's request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Debentures of such series (i) cash in
an amount, or (ii) Governmental Obligations maturing as to principal and
interest at such times and in such amounts as will insure the availability
of cash or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Debentures of such series on each date that
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Debentures of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the
holders of the Debentures of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same
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times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have
been complied with; and
(e) no event or condition shall exist that, pursuant to the provisions
of Section 14.02 or 14.03, would prevent the Company from making payments
of the principal of or interest on the Debentures of such series on the
date of such deposit.
SECTION 11.02. Subject to Section 11.04, all moneys deposited with
the Trustee (or other trustee) pursuant to Section 11.01 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular Debentures of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated from
other funds except to the extent required by law.
SECTION 11.03. In connection with the satisfaction and discharge of
this Indenture with respect to Debentures of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such
series of Debentures shall, upon demand of the Company be repaid to it or paid
to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 11.04. Any moneys deposited with, or paid to, the Trustee or
any paying agent for the payment of principal of, or interest on, any Debenture
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee for such series or such paying
agent, and the holder of any Debentures of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Company for any payment which such
holder may be entitled to collect, and all liability of the Trustee or any
paying
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agent with respect to such moneys shall thereupon cease; provided, however, that
-------- -------
the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment, shall, at
the expense of the Company, mail by first-class mail to holders of such
Debentures at their addresses as they shall appear on the Debenture Register,
notice that such moneys remain and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 11.05. The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on, or assessed against, the
Governmental Obligations deposited pursuant to Section 11.01 or the principal or
interest received in respect of such obligations.
ARTICLE XII
Immunity of Incorporators, Stockholders,
----------------------------------------
Officers and Directors
----------------------
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, and any and all such rights and claims against
every such incorporator, stockholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
69
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture made by, or on behalf of, the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding required by any provision of
this Indenture to be authorized or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by
the corresponding board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. The Company, by instrument in writing executed by
authority of two-thirds of its Board of Directors and delivered to the Trustee,
may surrender any of the powers reserved to the Company and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Except as otherwise expressly provided herein, any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Vintage
Petroleum, Inc., 0000 Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
Chief Financial Officer. Any notice, election, request or demand by the Company
or any Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all purposes
shall be construed
70
in accordance with the laws of said State (without regard to principles of
conflicts of laws thereof).
SECTION 13.06. (a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the Certificate provided pursuant to Section
5.03(d)) 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 13.07. Except as provided pursuant to Section 2.01 in one or
more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debenture or the date of redemption of
any Debenture shall not be a Business Day then payment of interest or principal
(and premium, if any) may be made on the next succeeding day which is a Business
Day with the same force and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
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SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Debentures of any 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 Debentures, but this Indenture and such Debentures shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to assign
any of its rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain jointly and severally liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
SECTION 13.12. The Company hereby acknowledges that, to the extent
specifically set forth herein, prior to a Security Exchange with respect to the
Debentures of any series held as trust assets of a Vintage Petroleum Capital
Trust, the holders of the Preferred Securities of such Vintage Petroleum Capital
Trust shall expressly be third party beneficiaries of this Indenture. The
Company further acknowledges that, prior to a Security Exchange with respect to
Debentures of any series held as trust assets of a Vintage Petroleum Capital
Trust, if the Property Trustee of such Vintage Petroleum Capital Trust fails to
enforce its rights under this Indenture as the holder of the Debentures of a
series held as trust assets of such Vintage Petroleum Capital Trust, any holder
of the Preferred Securities of such Vintage Petroleum Capital Trust may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other Person.
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ARTICLE XIV
Subordination of Debentures
---------------------------
SECTION 14.01. The Company, for itself, its successors and assigns,
covenants and agrees, and each holder of a Debenture, by its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (premium, if
any), and interest on, each and all of the Debentures is hereby expressly
subordinated, to the extent and in the manner hereinafter in this Article set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness. The provisions of this Article are made for the benefit of all
holders of Senior Indebtedness, and any such holder may proceed to enforce such
provisions.
SECTION 14.02. No payment by the Company on account of principal of
(premium, if any), or interest on, the Debentures of any series shall be made if
any default or event of default with respect to any Senior Indebtedness, which
permits or with the giving of notice or passage of time or both would permit the
holders thereof (or a trustee on their behalf) to accelerate the maturity
thereof, shall have occurred and be continuing and the Company and the Trustee
shall have received written notice thereof from the holders of at least 10% in
principal amount of any kind or category of any Senior Indebtedness (or the
representative or trustee of such holders) or the Trustee shall have received
written notice thereof from the Company.
In the event that any Debentures of any series are declared due and
payable before the date specified therein as the fixed dated on which the
principal thereof is due and payable pursuant to Article VI, or upon any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all principal of (premium, if any) and interest due or to become due upon all
Senior Indebtedness shall first be paid in full before any holders of
Debentures, or the Trustee, shall be entitled to receive or retain any assets
(other than shares of stock of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated, at least
to the same extent as the Debentures, to the payment of all Senior Indebtedness
which may at the time be outstanding, provided that the rights of the holders of
the Senior Indebtedness are not altered by such
73
reorganization or readjustment) so paid or distributed in respect of the
Debentures (for principal or interest); and upon such dissolution or winding up
or liquidation or reorganization, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities (other
than shares of stock of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated at least to the same
extent as the Debentures, to the payment of all Senior Indebtedness which may at
the time be outstanding, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment), to which
any holder of Debentures or the Trustee would be entitled, except for the
provisions of this Section, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by any holder of Debentures or the Trustee if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or their representatives or trustees, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the holders of
Debentures or to the Trustee.
No holder of Senior Indebtedness shall be prejudiced in his right to
enforce subordination of the Debentures of any series by any act or failure to
act on the part of the Company.
Without notice to or the consent of any holder of Debentures or the
Trustee the holders of Senior Indebtedness may at any time and from time to
time, without impairing or releasing the subordination herein made, change the
manner, place or terms of payment, or change or extend the time of payment of or
renew or alter the Senior Indebtedness, or amend or supplement in any manner any
instrument evidencing the Senior Indebtedness, any agreement pursuant to which
the Senior Indebtedness was issued or incurred or any instrument securing or
relating to the Senior Indebtedness; release any person liable in any manner for
the payment or collection of the Senior Indebtedness; exercise or refrain from
exercising any rights in respect of the Senior Indebtedness against the Company
or any other person; apply any moneys or other property paid by any person or
released in any manner to the Senior Indebtedness; or accept or release any
security for the Senior Indebtedness.
74
Subject to the payment in full of all Senior Indebtedness, the holders
of Debentures shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that, by its express terms, ranks on a parity with
the Debentures and is entitled to like rights or subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until the Debentures
shall be paid in full. For purposes of such subrogation, no payments or
distributions on the Senior Indebtedness pursuant to this Section shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Debentures, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness, and no payments or
distributions to the Trustee or the holders of the Debentures of assets by
virtue of the subrogation herein provided for shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Debentures, be deemed to be a payment to or on account of the Debentures. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders of the Debentures, on the one hand,
and the holders of Senior Indebtedness, on the other hand, and nothing contained
in this Article or elsewhere in this Indenture or in the Debentures of any
series is intended to or shall impair the obligation of the Company, which is
unconditional and absolute, to pay the principal of and interest on the
Debentures of any series when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the holders of
the Debentures and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article, of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company otherwise payable or delivered to the
Trustee or any holder of Debentures upon the exercise of any such remedy.
Upon any payment or distribution pursuant to this Section, the Trustee
and any holder of Debentures shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature
referred to in this Section are pending, and the Trustee, subject to the
provisions of Section 7.01, and any holder of Debentures shall be entitled to
rely upon a certificate of the liquidating trustee or agent or other person
making such payment or distribution delivered to the Trustee or to any holder of
Debentures, for the purpose of
75
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the 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 Section.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Section, 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, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Debentures of any series, shall prevent (a) the application by the
Trustee or any paying agent of any moneys deposited with it hereunder to the
payment of or on account of the principal of or interest on Debentures of any
series if, at the time of such deposit (provided that the time of such deposit
was not more than 10 days prior to the time of such payment), such payment would
not have been prohibited by the foregoing provisions of this Section or (b) any
payment by the Company or the Trustee to any holder of Debentures of moneys in
connection with a redemption of Debentures of any series if (i) notice of such
redemption has been given to the holders of the Debentures to be redeemed
pursuant to Article III prior to the receipt by the Trustee of the written
notice referred to in Section 14.04 and (ii) such notice of redemption is given
not earlier than 60 days before the date fixed for redemption.
SECTION 14.03. The holder of each Debenture by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge and effectuate the subordination between
the holders of Debentures and the holders of Senior Indebtedness as provided in
this Article and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 14.04. Notwithstanding the provisions of this Article or any
other provision of this Indenture, but subject to the provisions of Section
7.01, the Trustee and any paying agent shall not be charged with knowledge of
the
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existence of any Senior Indebtedness, or any default in the payment of the
principal of (premium, if any), or interest on, any Senior Indebtedness, or of
any facts which would prohibit the making of any payment of moneys to or by the
Trustee or any such paying agent, unless and until the Trustee or such paying
agent shall have received written notice thereof from the Company or the holders
of at least 10% in principal amount of any kind or category of any Senior
Indebtedness or the representative or trustee of such holders; nor shall the
Trustee or any such paying agent be charged with knowledge of the curing of any
such default or of the elimination of the act or condition preventing any such
payment unless and until the Trustee or such paying agent shall have received an
Officers' Certificate to such effect.
SECTION 14.05. The Trustee shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of Senior
Indebtedness; and nothing in Section 7.13, or elsewhere in this Indenture, shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 7.06.
SECTION 14.06. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to any holder of
Debentures or the Company or any other person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 14.07. In case at any time any paying agent other than the
Trustee shall have been appointed by the Company and be acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the context
shall otherwise require) be construed as extending to and including such paying
agent within its meaning as fully for all intents and purposes as if such paying
agent were named in this Article in addition to or in place of the Trustee;
provided, however, that Sections 14.04, 14.05 and 14.06 shall not apply to the
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Company if it acts as paying agent.
[ ], as Trustee, hereby accepts the trust in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
VINTAGE PETROLEUM, INC.
by
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Name:
Title:
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Name:
Title:
[ ],
as Trustee,
by
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Name:
Title:
----------------------
Name:
Title:
