1
EXHIBIT 4.1
EXECUTION COPY
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BELCO OIL & GAS CORP.
As Issuer
8-7/8% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
Dated as of September 23, 1997
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THE BANK OF NEW YORK
As Trustee
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2
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 7.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 11.2; 11.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3; 4.4; 11.2; 11.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3-10.5
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
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N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.3. Incorporation By Reference of Trust Indenture Act . . . . . . . . . . . . . . . . 25
Section 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 2
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.4. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.5. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.7. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.8. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.9. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.10. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 3
REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . . . . . . . . 38
Section 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.2. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.6. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.7. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.8. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.9. Offer to Purchase By Application of Excess Proceeds . . . . . . . . . . . . . . . 42
ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.1. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.3. Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.4. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.6. Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . 47
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Section 4.7. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.8. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries . . . . 51
Section 4.9. Incurrence of Indebtedness and Issuance of Disqualified Stock . . . . . . . . . . 52
Section 4.10. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.11. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 4.12. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.13. Offer to Repurchase Upon Change of Control . . . . . . . . . . . . . . . . . . . 58
Section 4.14. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 4.15. No Senior Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.16. Guarantees of Indebtedness by Restricted Subsidiaries . . . . . . . . . . . . . . 60
Section 4.17. Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 4.18. Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 5
SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 5.1. Merger, Consolidation, or Sale of Substantially All Assets . . . . . . . . . . . 62
Section 5.2. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.7. Rights of Holders of Notes to Receive Payment . . . . . . . . . . . . . . . . . . 68
Section 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.6. Reports by Trustee to Holders of the Notes . . . . . . . . . . . . . . . . . . . 73
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Section 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 7.9. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . 76
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . 76
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . 76
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . 76
Section 8.2. Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.4. Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . 78
Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 8.6. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . . . . . . . . . . . 81
Section 9.1. Without Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.2. With Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.4. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.5. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.6. Trustee to Sign Amendment, etc. . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE 10
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.1. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.2. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.3. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.4. Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 10.5. Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10.6. When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.7. Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.8. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.9. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.10. Subordination May Not Be Impaired by Company or the Subsidiary Guarantors,
If Any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.11. Payment, Distribution or Notice to Representative . . . . . . . . . . . . . . . . 91
Section 10.12. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.13. Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.14. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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Section 10.15. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.3. Communication by Holders of Notes with Other Holders of Notes . . . . . . . . . . 95
Section 11.4. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . 95
Section 11.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . 95
Section 11.6. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.7. No Personal Liability of Directors, Officers, Employees and Stockholders . . . . 96
Section 11.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.9. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . 96
Section 11.10. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.12. Counterpart Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.13. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . . . . . . . . . . 97
EXHIBITS
Exhibit A FORM OF INITIAL NOTE
Exhibit B FORM OF EXCHANGE NOTE
Exhibit C FORM OF TRANSFEREE LETTER OF REPRESENTATION
Exhibit D FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of September 23, 1997 among Belco Oil & Gas
Corp., a Nevada corporation (the "Company"), as issuer and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 8-7/8%
Senior Subordinated Notes due 2007 of the Company (the "Initial Notes"), and if
and when issued in exchange for Initial Notes as provided in the Registration
Rights Agreement (as hereinafter defined), the Company's 8-7/8% Senior
Subordinated Notes due 2007 (the "Exchange Notes" and, together with the
Initial Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that a Director or Officer of a Person shall not, for purposes of this
definition, be deemed to control such Person solely by reason of their holding
such position or office. No Person shall be deemed an Affiliate of an oil and
gas royalty trust solely by virtue of ownership of units of beneficial interest
in such trust.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to a Note at the
redemption date, the greater of (i) 1% of the principal
8
amount of such Note and (ii) the excess of (A) the present value at such time
of (1) the redemption price of such Note at September 15, 2002, as set forth in
Section 3.7, plus (2) all required interest payments (excluding accrued but
unpaid interest) due on such Note through September 15, 2002, computed using a
discount rate equal to the Treasury Rate plus 75 basis points, over (B) the
then-outstanding principal amount of such Note.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition by the Company or any of its Restricted Subsidiaries (but excluding
the creation of a Lien) of any assets including, without limitation, by way of
a sale and leaseback; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole shall be governed by Sections 4.13 and/or 5.1
hereof and not by Section 4.10 hereof), and (ii) the issue or sale by the
Company or any of its Restricted Subsidiaries of Equity Interests of any of the
Company's Subsidiaries (including the sale by the Company or a Restricted
Subsidiary of Equity Interests in an Unrestricted Subsidiary), in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (a) that have a fair market value in excess of $10.0
million or (b) for net proceeds in excess of $10.0 million. Notwithstanding
the foregoing, the following shall not be deemed to be Asset Sales: (1) a
transfer of assets by the Company to a Restricted Subsidiary of the Company or
by a Restricted Subsidiary of the Company to the Company or to another
Restricted Subsidiary of the Company, (2) an issuance of Equity Interests by a
Wholly Owned Restricted Subsidiary of the Company to the Company or to another
Wholly Owned Restricted Subsidiary of the Company, (3) the making of a
Restricted Payment or an Investment that is, in either case, permitted by
Section 4.7; provided that the sale, lease, conveyance or other disposition by
the Company or any of its Restricted Subsidiaries of an Investment shall be
deemed an Asset Sale, (4) the abandonment, farm-out, lease or sublease of
undeveloped oil and gas properties in the ordinary course of business, (5) the
trade or exchange by the Company or any Restricted Subsidiary of the Company of
any oil and gas property or interest therein owned or held by the Company or
such Restricted Subsidiary for any oil and gas property or interest therein
owned or held by another Person, including any cash or Cash Equivalents
necessary in order to achieve an exchange of equivalent value; provided that
any such cash or Cash Equivalents received by the Company or such Restricted
Subsidiary will be subject to the provisions described in the second and third
paragraphs in Section 4.10 which the Board of Directors of the Company
determines in good faith by resolution to be of approximately equivalent value,
(6) the sale or transfer of hydrocarbons or other mineral products in the
ordinary course of business, (7) the sale of oil and gas properties in
connection with tax credit transactions complying with Section 29 or any
successor
9
3
or analogous provisions of the Internal Revenue Code or (8) the sale or
transfer of surplus or obsolete equipment in the ordinary course of business.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended to the extent the lease payments during such
extension period are required to be capitalized on a balance sheet in
accordance with GAAP).
"Bankruptcy Code" means Title 11 of the United States Code, as
amended.
"Board of Directors" means the Board of Directors of a Person or
any authorized committee of such Board of Directors.
"Borrowing Base" means, as of any date, the aggregate amount of
borrowing availability as of such date under all Credit Facilities that
determine availability on the basis of a borrowing base or other asset-based
calculation.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company or similar entity, any membership or similar interests therein and (v)
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than twelve months from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of twelve
10
4
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding twelve months and overnight bank deposits, in each
case with any lender party to the New Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500 million, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having a rating of at least P1 from Xxxxx'x
or a rating of at least A1 from S&P, and (vi) investments in money market or
other mutual funds substantially all of whose assets comprise securities of the
types described in clauses (ii) through (v) above.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole to any "Person" or group
of related Persons (a "Group") (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act);
(ii) the consummation of any transaction (including, without
limitation, any purchase, sale, acquisition, disposition, merger or
consolidation) the result of which is that any "person" (as defined
above) or Group, other than one or more Permitted Holders, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act) of more than 50% of the aggregate voting power
of all classes of Capital Stock of the Company having the right to elect
directors under ordinary circumstances;
(iii) the adoption of a plan relating to the liquidation or
dissolution of the Company; and
(iv) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors then in office.
"Closing Date" means the date of the closing of the sale of the
Notes offered pursuant to the Offering.
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5
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period plus (i) an amount equal to any extraordinary or
non-recurring loss, and any net loss realized in connection with (a) an Asset
Sale (together with any related provision for taxes) and (b) the disposition of
any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries, to the extent such losses were included in computing such
Consolidated Net Income, plus (ii) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was included in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
letters of credit or bankers' acceptance financings, and net payments (if any)
pursuant to Interest Rate Hedging Agreements), to the extent that any such
expense was included in computing such Consolidated Net Income, plus (iv)
depreciation, depletion and amortization expenses (including amortization of
goodwill and other intangibles) for such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, depletion and
amortization expenses were included in computing such Consolidated Net Income,
plus (v) exploration expenses for such Person and its Restricted Subsidiaries
for such period to the extent such exploration expenses were included in
computing such Consolidated Net Income, plus (vi) costs incurred in connection
with acquisitions that would be eligible for capitalization treatment under
GAAP, but have been expensed at the time of incurrence, plus (vii) other
non-cash charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period, including, without
limitation, any ceiling limitation write downs and non-cash losses or charges
to net income resulting from the net change in value of such Person's xxxx-to-
market portfolio of Oil and Gas Commodity Price Risk Management Contracts, to
the extent that such other non-cash charges were included in computing such
Consolidated Net Income, in each case, on a consolidated basis and determined
in accordance with GAAP. Notwithstanding the foregoing, the provision for
taxes on the income or profits of,
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6
and the depreciation, depletion and amortization and other non-cash charges and
expenses of, a Restricted Subsidiary of the relevant Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in the same proportion) that the Net Income of such Restricted Subsidiary
was included in calculating the Consolidated Net Income of such Person and only
if a corresponding amount would be permitted at the date of determination to be
dividended to such Person by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that
is not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition
shall be excluded and (iv) the cumulative effect of a change in accounting
principles shall be excluded.
"Consolidated Net Worth" means the total of the amounts shown on
the balance sheet of the Company and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of
the most recent fiscal quarter of the Company ending prior to the taking of any
action for the purpose of which the determination is being made and for which
financial statements are available (but in no event ending more than 135 days
prior to the taking of such action), as (i) the par or stated value of all
outstanding Capital Stock of the Company, plus (ii) paid-in capital or capital
surplus relating to such Capital Stock, plus (iii) any retained earnings or
earned surplus, less (a) any accumulated deficit (in each case excluding any
minority interest) and (b) any amounts attributable to Disqualified Stock.
13
7
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.2 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities (including, without
limitation, the New Credit Facility) or commercial paper facilities with banks
or other institutional lenders providing for revolving credit loans, term
loans, production payments, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or letters of credit, in each case,
as amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time. Indebtedness under Credit Facilities
outstanding on the date on which the Notes are first issued and authenticated
under this Indenture (after giving effect to the use of proceeds thereof) shall
be deemed to have been incurred on such date in reliance on the exception
provided by clause (b) of the definition of Permitted Indebtedness set forth in
Section 4.9 hereof.
"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Notes issued in the form
of one or more Global Notes, DTC or another Person designated as Depository by
the Company, which must be a clearing agency registered under the Exchange Act.
"Designated Senior Debt" means (i) the New Credit Facility and
(ii) any other Senior Debt permitted under this Indenture which, at the date of
determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof are committed to lend
up to, at least $10 million and is specifically designated by the Company or a
Subsidiary Guarantor, as applicable, in the instrument evidencing or governing
such Senior Debt as "Designated Senior Debt" for purposes of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable) or upon the happening of any event, matures or is mandatorily
redeemable for any consideration other than Capital Stock, pursuant to a
sinking fund obligation or otherwise, is convertible or is exchangeable for
Indebtedness or Disqualified Stock or redeemable for any consideration other
than Capital Stock at the option of the holder thereof, in whole or in part, in
each case on or prior to the date that is 91 days after (x) the date on which
the Notes mature or (y) on which there are no Notes outstanding.
14
8
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Investments" means any Investments held by the Company
or any of its Restricted Subsidiaries as of the date of the Indenture.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Interest Rate Hedging Agreements), (ii) the consolidated interest expense of
such Person and its Restricted Subsidiaries that was capitalized during such
period, (iii) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or any of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or any of its Restricted Subsidiaries (whether or
not such guarantee or Lien is called upon) and (iv) the product of (a) all cash
dividend payments (and non-cash dividend payments in the case of a Person that
is a Restricted Subsidiary, unless paid in Equity Interests that are not
Disqualified Stock) on any series of preferred stock of such Person or any of
its Restricted Subsidiaries, times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
Notwithstanding the foregoing, when calculating the amount of Fixed Charges,
any interest expense attributable to any Person shall be included in such
calculation to the same extent the Net Income of such Person was included in
the calculation of Consolidated Net Income in connection with calculating the
Fixed Charge Coverage Ratio.
15
9
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees
or redeems any Indebtedness (other than revolving credit borrowings) or issues
or redeems preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated but prior to the date
on which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee or redemption
of Indebtedness, or such issuance or redemption of preferred stock, as if the
same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the referent Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date (including, without limitation, any acquisition to occur on
the Calculation Date) shall be deemed to have occurred on the first day of the
four-quarter reference period and any cost savings or expense reductions
attributable at the time of such computation or to be attributable in the
future to such acquisition, shall be included in such computation, to the
extent that such adjustments would be permitted under Article 11 of Regulation
S-X and Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income, (ii) the net proceeds of Indebtedness
incurred or Disqualified Stock issued by the referent Person pursuant to the
first paragraph of Section 4.9 hereof during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have been received by the referent Person or any of its
Restricted Subsidiaries on the first day of the four-quarter reference period
and applied to its intended use on such date, (iii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall
be excluded and (iv) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges shall not be obligations of
the referent Person or any of its Restricted Subsidiaries following the
Calculation Date.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial
16
10
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession of the
United States of America, which are in effect as of the date hereof.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such
Government Security or a specific payment of principal of or interest on any
such Government Security held by such custodian for the account of the holder
of such depository receipt; provided, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Security or the specific payment of principal of
or interest on the Government Security evidenced by such depository receipt.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantor Senior Indebtedness" means any Indebtedness of a
Subsidiary Guarantor permitted to be incurred under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Subsidiary Guarantee of such Subsidiary Guarantor, including
interest accruing subsequent to the filing of, or which would have accrued but
for the filing of, a petition of bankruptcy, whether or not such interest is an
allowable claim in such bankruptcy proceeding. Notwithstanding anything to the
contrary in the foregoing sentence, Guarantor Senior Indebtedness will not
include (1) any liability for federal, state, local or other taxes owed or
owing by any Subsidiary Guarantor, (2) any obligation of a Subsidiary Guarantor
to the Company or to any other Restricted Subsidiary of the Company, (3) any
accounts payable or trade liabilities of a Subsidiary Guarantor arising in the
ordinary course of business (including instruments evidencing such
liabilities), (4) any Indebtedness of Subsidiary Guarantor that is incurred in
violation of this Indenture, (5) Indebtedness of a Subsidiary Guarantor which,
when incurred and without
17
11
respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code,
is without recourse to such Subsidiary Guarantor, (6) any Indebtedness,
guarantee or obligation of a Subsidiary Guarantor which is subordinate or
junior to any other Indebtedness, guarantee or obligation of such Subsidiary
Guarantor, (7) Indebtedness evidenced by a Subsidiary Guarantee and (8) Capital
Stock of a Subsidiary Guarantor.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (a) any indebtedness of such Person, whether or not contingent,
(i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) evidenced by letters of credit (or reimbursement
agreements in respect thereof) or banker's acceptances, (iv) representing
Capital Lease Obligations, (v) representing the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, (vi) representing any obligations in respect
of Interest Rate Hedging Agreements or Oil and Gas Commodity Price Risk
Management Contracts, and (vii) in respect of any Production Payment, (b) all
Indebtedness of others secured by a Lien on any asset of such Person (whether
or not such indebtedness is assumed by such Person), (c) obligations of such
Person in respect of production imbalances, (d) Acquired Debt of such Person,
(e) Attributable Debt of such Person, and (f) to the extent not otherwise
included in the foregoing, the guarantee by such Person of any Indebtedness of
any other Person.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means Chase Securities Inc., Xxxxxxx, Xxxxx
& Co. and Xxxxx Xxxxxx Inc. as initial purchasers of the Notes.
"Institutional Accredited Investors" means an institutional
"accredited investor" within the meaning of Rules 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Rate Hedging Agreements" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of direct
or indirect loans (including
18
12
guarantees of Indebtedness or other obligations, but excluding trade credit) or
capital contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided that the following shall not constitute
Investments: (i) an acquisition of assets, Equity Interests or other securities
by the Company for consideration consisting of common equity securities of the
Company, (ii) Interest Rate Hedging Agreements entered into in accordance with
the limitations set forth in clause (h) of the second paragraph of Section 4.9,
(iii) Oil and Gas Commodity Price Risk Management Contracts entered into in
accordance with the limitations set forth in clause (i) of the second paragraph
of Section 4.9 and (iv) endorsements of negotiable instruments and documents in
the ordinary course of business, (v) extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices, and (vi) bonds,
notes, debentures or other securities received in accordance with the
limitations set forth in Section 4.10. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Equity Interests
of any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such entity is no longer a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Xxxxx'x" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain or loss, together with any
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13
related provision for taxes on such gain or loss, realized in connection with
(a) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (ii) any
extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on such extraordinary or nonrecurring gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries within 90 days of any Asset Sale,
in respect of any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in
any Asset Sale, but excluding cash amounts placed in escrow, until such amounts
are released to the Company), net of the direct costs relating to such Asset
Sale (including, without limitation, legal, accounting, investment banking and
other professional fees and expenses, and sales commissions) and any relocation
expenses incurred as a result thereof, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), amounts required to be applied to the repayment
of Indebtedness secured by a Lien on the asset or assets that were the subject
of such Asset Sale and any reserve for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP and any reserve
established for future liabilities.
"New Credit Facility" means that certain Credit Agreement, dated
as of September 23, 1997, among the Company, The Chase Manhattan Bank, as Agent
and lender and the other parties thereto, providing for up to $150 million of
Indebtedness, including any related notes, guarantees, security or pledge
agreements, collateral documents, instruments and agreements executed by the
Company or any Subsidiary of the Company in connection therewith, and in each
case as amended, restated, modified, renewed, refunded, replaced or refinanced,
in whole or in part, from time to time, whether or not with the same lenders or
agents; provided that no such amendments, restatements, modifications,
renewals, refundings, replacements or refinancings shall result in provisions
for Indebtedness or outstanding Indebtedness in excess of $250 million, and
provided further, that the total amount of Indebtedness outstanding under the
New Credit Facility and all documents executed in connection therewith and
referred to in this definition shall be no greater than $250 million in the
aggregate.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides any guarantee
or credit support of any kind (including any undertaking, guarantee, indemnity,
agreement or
20
14
instrument that would constitute Indebtedness), or (b) is directly or
indirectly liable (as guarantor or otherwise); (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) the explicit terms of which provide
that there is no recourse against any of the assets of the Company or its
Restricted Subsidiaries (other than the Capital Stock of an Unrestricted
Subsidiary).
"Note Custodian" means the Trustee or the Registrar, as custodian
with respect to the Notes in global form, or any successor entity thereto or
any entity acting as custodian with respect to Notes in global form.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, the Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on behalf of
the Company, by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.5 hereof.
"Oil and Gas Business" means (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon properties, (ii) the gathering, marketing, distribution, treating,
processing, storage, selling and transporting of any production from such
interests or properties and the marketing of oil and gas obtained from
unrelated Persons, (iii) any business relating to exploration for or
development, production, treatment, processing, storage, transportation,
gathering or marketing of oil, gas and other minerals and products produced in
association therewith, (iv) any business relating to oil field sales and
service and (v) any activity that is ancillary to or necessary or appropriate
for the
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activities described in clauses (i) through (iv) of this definition.
"Oil and Gas Commodity Price Risk Management Contracts" means any
oil and gas purchase or commodity price risk management agreement, and other
agreement or arrangement, entered into in the ordinary course of business, in
each case, that is utilized in connection with the Company's policy of
achieving a more predictable cash flow, and reducing the Company's exposure to
fluctuations in gas and oil prices.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof. The counsel may be an employee of or counsel to the Company or
the Trustee.
"Pari Passu Indebtedness" means (a) with respect to the Notes,
Indebtedness that ranks pari passu in right of payment to the Notes and (b)
with respect to any Subsidiary Guarantee, Indebtedness which ranks pari passu
in right of payment to such Subsidiary Guarantee.
"Permitted Holders" means (1) Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxxxxx X. Xxxxxx and Xxxx Xxxxx, (2) the spouses and descendants of such
individuals, (3) the estates or legal representatives of the individuals named
in clauses (1) and (2) and (4) trusts created for the benefit of Persons named
in clauses (1) and (2).
"Permitted Indebtedness" has the meaning given in the covenant
described in Section 4.9
"Permitted Investments" means (a) any Investment in the Company
or in a Restricted Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person if, as a result of such Investment and any related
transactions that at the time of such Investment are contractually mandated to
occur, (i) such Person becomes a Restricted Subsidiary of the Company or (ii)
such Person is merged, consolidated or amalgamated with or into, or transfers
or conveys all or substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company; (d) any Investment made
as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.10 or not constituting an
Asset Sale by reason of the $5 million threshold contained in the definition
thereof; (e) any Investment acquired by the Company in exchange for Equity
Interests in the Company (other than Disqualified Stock), (f) shares of Capital
Stock received in connection with any good faith settlement of a bankruptcy
proceeding involving a trade creditor; (g) Interest Rate Hedging Agreements or
Oil and Gas Commodity Price Risk
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Management Contracts; (h) loans and advances to employees in the ordinary
course of business for bona fide business purposes; (i) entry into operating
agreements, joint ventures, partnership agreements, working interests, royalty
interests, mineral leases, processing agreements, farm-out or farm-in
agreements, contracts for the sale, transportation or exchange of oil and
natural gas, unitization agreements, pooling arrangements, area of mutual
interest agreements, production sharing agreements or other similar or
customary agreements, transactions, properties, interests or arrangements, and
Investments and expenditures in connection therewith or pursuant thereto, in
each case made or entered into in the ordinary course of the Oil and Gas
Business, excluding however, Investments in corporations other than any
Investment received pursuant to the provisions set forth in Section 4.10 and
(j) any other Investments in any Person or Persons not otherwise permitted to
be made pursuant to clauses (a)-(i) above, when taken together with all other
Investments made pursuant to this clause (j) that are at the time outstanding,
having an aggregate amount (such amount to be calculated on a cost basis) not
to exceed the greater of (i) the sum of (x) Existing Investments and any
Investments made with the proceeds of any sales thereof therefrom plus (y) $15
million and (ii) 15% of Total Assets, as calculated at the time of such
Investment. For purposes of clause (i) of the preceding sentence, the amount
of any Existing Investment (including any Investment made with the proceeds
therefrom) is to be calculated on a cost basis.
"Permitted Liens" means:
(i) Liens securing Indebtedness of a Subsidiary or Liens
securing Senior Debt that is outstanding on the date of issuance of the
Notes and Liens securing Senior Debt that is permitted by the terms of
this Indenture to be incurred;
(ii) Liens in favor of the Company or any Restricted
Subsidiary;
(iii) Liens on property existing at the time of acquisition
thereof by the Company or any Subsidiary of the Company and Liens on
property or assets of a Subsidiary existing at the time it became a
Subsidiary; provided that such Lien was not created in contemplation of
the acquisition of the property, and provided further that no such Lien
shall extend to any assets other than the acquired property or the
property of the acquired subsidiary;
(iv) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance or other kinds of social security, or to secure the payment or
performance of tenders, statutory or regulatory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
23
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incurred in the ordinary course of business (including lessee or
operator obligations under statutes, governmental regulations or
instruments related to the ownership, exploration and production of oil,
gas and minerals on state or federal lands or waters);
(v) Liens existing on the date of this Indenture;
(vi) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor;
(vii) statutory liens of landlords, mechanics, suppliers,
vendors, warehousemen, carriers or other like Liens arising in the
ordinary course of business;
(viii) pre-judgement Liens and judgment Liens not giving rise
to an Event of Default so long as any appropriate legal proceeding that
may have been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such proceeding
may be initiated shall not have expired;
(ix) Liens on, or related to, properties or assets to secure
all or part of the costs incurred in the ordinary course of the Oil and
Gas Business for the exploration, drilling, development, production,
processing, transportation, marketing, storage or operation thereof;
(x) Liens on pipeline or pipeline facilities that arise
under operation of law;
(xi) Liens arising under operating agreements, joint venture
agreements, partnership agreements, oil and gas leases, farm-out or
farm-in agreements, division orders, contracts for the sale,
transportation or exchange of oil or natural gas, unitization and
pooling declarations and agreements, area of mutual interest agreements
and other agreements that are customary in the Oil and Gas Business;
(xii) Liens reserved in oil and gas mineral leases for bonus
or rental payments and for compliance with the terms of such leases,
(xiii) Liens securing the Notes,
(xiv) Liens constituting survey exceptions, encumbrances,
easements, and reservations of, and rights to others for, rights-of-way,
zoning and other restrictions as to the use of real properties, and
minor defects of title
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which, in the case of any of the foregoing, do not secure the payment of
borrowed money, and in the aggregate do not materially adversely affect
the value of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, or materially impair the use of such properties for
the purposes for which such properties are held by the Company or such
Subsidiaries,
(xv) any interest or title of a lessor under any Capital
Lease Obligation or operating lease,
(xvi) Liens resulting from the deposit of funds or evidences
of Indebtedness in trust for the purpose of defeasing Senior
Indebtedness of the Company or any of the Restricted Subsidiaries,
(xvii) Liens securing obligations under Interest Rate Hedging
Agreements or Oil and Gas Commodity Price Risk Management Contracts,
(xviii) Liens upon specific items of inventory or other goods
and proceeds of the Company or any Restricted Subsidiary securing the
Company's or such Restricted Subsidiary's, as the case may be,
obligations in respect of bankers' acceptances issued or created for the
account of the Company or such Restricted Subsidiary, as the case may
be, to facilitate the purchase, shipment or storage of such inventory or
other goods,
(xix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof,
(xx) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company
or its Restricted Subsidiaries relating to such property or assets,
(xxi) Liens encumbering deposits made to secure Obligations
arising from statutory, regulatory, contractual or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights
of offset and set-off;
(xxii) Liens securing Purchase Money Debt; provided however
that the related Purchase Money Debt shall not be secured by any
property or assets of the Company or any Restricted Subsidiary other
than the property and assets acquired by the Company with the proceeds
of such Purchase Money Debt,
(xxiii) Liens on the Capital Stock of Unrestricted Subsidiaries,
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(xxiv) Liens to secure any Permitted Refinancing Debt, provided
that the Indebtedness so exchanged, extended, refinanced, renewed,
replaced, defeased or refunded was secured by Liens permitted pursuant
to clause (iii) or (v) of this definition, provided however, that (a)
such new Liens shall be limited to all or part of the same property that
secured the original Lien, plus improvements on the property and (b) the
Permitted Refinancing Debt secured by such Lien at such time is not
increased to any amount greater than the sum of (x) the outstanding
principal amount or, if greater, the committed amount of the
Indebtedness secured by Liens described under clause (iii) or (v) of
this definition at the time the original Lien became a Lien permitted in
accordance with the Indenture and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such exchange,
extension, refinancing, renewal, replacement, defeasement or refunding,
(xxv) Liens securing Attributable Indebtedness under any sale
and leaseback transaction permitted by the terms of the Indenture, but
only on the property subject to such sale and leaseback transaction, and
(xxvi) Liens not otherwise permitted by clauses (i) through
(xxiv) that are incurred in the ordinary course of business of the
Company or any Subsidiary with respect to obligations that do not exceed
$10 million at any one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Indebtedness incurred under a Credit
Facility) of the Company or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Permitted Refinancing Indebtedness does not
exceed the principal amount of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
incurred in connection therewith (other than increases resulting from the
capitalization of interest or fees)); (ii) such Permitted Refinancing
Indebtedness has a final maturity date on or later than the final maturity date
of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes or the Subsidiary Guarantees, as
the case may be, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in right of
payment to, the Notes or the Subsidiary Guarantees, as the case may be, on
terms at least as favorable taken as a whole to the Holders of the
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Notes or the Subsidiary Guarantees, as the case may be, as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and (iv) such Indebtedness is incurred
either by the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Production Payments" means Dollar-Denominated Production
Payments and Volumetric Production Payments, collectively.
"Purchase Agreement" means the agreement, dated September 17,
1997, among the Company and the Initial Purchasers relating to the Offering.
"Purchase Money Debt" means Indebtedness incurred in connection
with the purchase by the Company or any of its Subsidiaries of any equipment,
real or personal property, or any other asset, other than Equity Interests of
any Person (i) as to which the obligee expressly waives the provisions of
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code; (ii) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides any guarantee or
credit support of any kind (including any undertaking, guarantee, indemnity,
agreement or instrument that would constitute Indebtedness), or (b) is directly
or indirectly liable (as guarantor or otherwise) other than the pledge of the
equipment, real or personal property or other assets acquired with the proceeds
of such Indebtedness; (iii) no default with respect to which (including any
rights that the holders thereof may have to take enforcement actions against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time, or both) any
holder of any other Indebtedness of the Company or any of its Restricted
Subsidiaries to declare a default on such other indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iv) the explicit terms of which provide that there is no recourse against any
of the assets of the Company or its Restricted Subsidiaries, other than
recourse against the equipment, real or personal property or other assets
acquired with the proceeds of such Indebtedness.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A).
"Registered Exchange Offer" means the offer to exchange the
Initial Notes for the Exchange Notes issued under a registration statement
filed pursuant to the terms of the Registration Rights Agreement.
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"Registration Rights Agreement" means the exchange and
registration rights agreement, dated September 23, 1997, among the Company and
the Initial Purchasers.
"Repurchase Offer" means an offer made by the Company to purchase
all or any portion of a Holder's Notes pursuant to Section 4.10 or 4.13 hereof.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject. When used with respect to the
Company, "Responsible Officer" means any officer of the Company to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means any direct or indirect Subsidiary
of the Company that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services and its
successors.
"Securities" means the securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (i) Indebtedness of the Company or any
Subsidiary of the Company under or in respect of any credit facility, whether
for principal, interest (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law, whether or
not the claim for such interest is allowed as a claim in such proceeding),
reimbursement obligations, fees, commissions, expenses, indemnities or other
amounts, and (ii) any other Indebtedness permitted under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes. Notwithstanding anything to the contrary in the
foregoing sentence, Senior Debt will not include (w) any liability for federal,
state, local or other taxes owed or owing by the Company, (x) any Indebtedness
of the Company to any of its Subsidiaries or other Affiliates, (y) any trade
payables or (z)
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any Indebtedness that is incurred in violation of this Indenture (other than
Indebtedness under (i) the New Credit Facility or (ii) any other credit
facility that is incurred on the basis of a representation by the Company to
the applicable lenders that it is permitted to incur such Indebtedness under
this Indenture).
"Shelf Registration Statement" has the meaning ascribed to such
term in the Registration Rights Agreement.
"Significant Subsidiary" means (i) each Subsidiary that for the
most recent fiscal year of such Subsidiary had consolidated revenues greater
than $10 million or as at the end of such fiscal year had assets or liabilities
greater than $10 million and (ii) any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the obligations of
the Company under this Indenture and the Notes by any Person in accordance with
the provisions of this Indenture.
"Subsidiary Guarantor" means any Person that incurs a Subsidiary
Guarantee; provided that upon the release and discharge of such Person from its
Subsidiary Guarantee in accordance with this Indenture, such Person shall cease
to be a Subsidiary Guarantor.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Assets" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet of such Person.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.6 hereof.
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"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to September 15, 2002; provided that if the
period from the redemption date to September 15, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to September 15, 2002
is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
which at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of
the Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through
merger or consolidation or Investment therein) to be an Unrestricted Subsidiary
only if: (a) such Subsidiary does not own any Capital Stock of, or own or hold
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (b) all the Indebtedness of such Subsidiary shall at the date of
designation, and will at all times thereafter consist of, Non-Recourse Debt;
(c) the Company certifies that such designation was permitted by Section 4.7;
(d) such Subsidiary, either alone or in the aggregate with all other
Unrestricted Subsidiaries, does not operate, directly or indirectly, all or
substantially all of the business of the Company and its Restricted
Subsidiaries; (e) such Subsidiary does not, directly or indirectly, own any
Indebtedness of or Equity Interest in, and has no Investments in, the Company
or any Restricted Subsidiary; (f) such Subsidiary is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation to maintain or preserve such Person's financial
condition or to cause such Person to achieve any specified levels of operating
results; and (g) on the date such Subsidiary is designated an Unrestricted
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Subsidiary, such Subsidiary is not a party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary with
terms substantially less favorable to the Company or such Restricted Subsidiary
than those that might have been obtained from Persons who are not Affiliates of
the Company. Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a resolution of
the Board of Directors of the Company giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to be
incurred as of such date. The Board of Directors of the Company may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that (1)
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could incur at least $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) pursuant to Section 4.9 on a pro forma basis
taking into account such designation and (2) such Subsidiary executes a
Guarantee if required by Section 4.16 of this Indenture.
"Volumetric Production Payments" means production payment
obligations recorded as deferred revenue in accordance with GAAP, together with
all undertakings and obligations in connection therewith.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned, directly or indirectly, by such Person or by one or
more Wholly Owned Restricted Subsidiaries of such Person.
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Section 1.2. Other Definitions.
Defined
in
Term Section
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . 4.11
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . . 3.9
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . 10.2
"Cash Consideration" . . . . . . . . . . . . . . . . . . . . . . 4.10
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . 4.13
"Change of Control Payment" . . . . . . . . . . . . . . . . . . . 4.13
"Change of Control Payment Date" . . . . . . . . . . . . . . . . 4.13
"Change of Control Redemption Payment" . . . . . . . . . . . . . 3.7
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . 3.7
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . 8.3
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Definitive Notes" . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Global Note" . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"incur" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.9
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . 8.2
"Non-Global Purchasers . . . . . . . . . . . . . . . . . . . . . 2.1
"Notice of Default" . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Offer Amount" . . . . . . . . . . . . . . . . . . . . . . . . . 3.9
"Offer Period" . . . . . . . . . . . . . . . . . . . . . . . . . 3.9
"outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Payment Blockage Notice" . . . . . . . . . . . . . . . . . . . . 10.4
"Payment Default" . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Permitted Indebtedness" . . . . . . . . . . . . . . . . . . . . 4.9
"Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . 3.9
"Register" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Representative" . . . . . . . . . . . . . . . . . . . . . . . . 10.2
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . 4.7
"Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Senior Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2
Section 1.3. Incorporation By Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
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"indenture securities" means the Notes;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" with respect to the Notes means the Company and with
respect to the Subsidiary Guarantees, if any, means the Subsidiary Guarantors
and any successor obligor upon the Notes and the Subsidiary Guarantees,
respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by rule enacted by
the Commission under the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
thereon shall be substantially in the form of Exhibit A hereto, the terms of
which are hereby incorporated herein and made part of this Indenture. Any
Exchange Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit B hereto, the terms of which are hereby
incorporated herein and made part of this Indenture. The Notes may have
notations, legends or endorsements required by
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law, stock exchange rule or usage. The Notes shall be printed, typewritten,
lithographed or engraved or produced by any combination of those methods, all
as determined by the officers of the Company executing the Notes, as evidenced
by their execution thereof. Each Note shall be dated the date of its original
issuance and shall show the date of its authentication. The Notes will be
fully registered as to principal and interest in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof.
(a) Global Notes. The Initial Notes are being offered and
sold by the Company pursuant to the Purchase Agreement.
Initial Notes offered and sold to QIBs in accordance with Rule
144A under the Securities Act ("Rule 144A") as provided in the Purchase
Agreement, shall be issued initially in the form of one or more permanent
global notes in definitive, fully registered form without interest coupons with
the Global Securities Legend and Restricted Securities Legend (until such
Restricted Securities Legend is removed in accordance with Section 2.6(g)
hereof) called for by Exhibit A hereto (each, a "Global Note"), which shall be
deposited on behalf of the Initial Purchasers with the Trustee, as custodian
for the Depository, and registered in the name of Cede & Co., as nominee of the
Depository, or will remain in the custody of the Trustee pursuant to the FAST
Balance Certificate Agreement between DTC and the Trustee. The Global Note or
Notes will be duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Secondary sales to Institutional Accredited Investors
who are not QIBs will be reflected in a separate Global Note. The Exchange
Notes shall be issued initially in the form of one or more Global Notes. The
aggregate principal amounts of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
Note Custodian, and the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depository for such
Global Note or Global Notes or the nominee of such Depository and (ii) shall be
held by the Trustee as custodian for the Depository. After the issuance of
Exchange Notes under a Registered Exchange Offer, the Trustee shall have no
duty to hold any Global Note as custodian for the Depository or any other
Security registered in the name of the Depository or a nominee of the
Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect
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to any Global Note held on their behalf by the Depository or by the Trustee as
the custodian of the Depository or under such Global Note, and the Depository
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
a holder of a beneficial interest in any Global Note.
(c) Certificated Securities. Except as otherwise provided
herein, owners of beneficial interests in Global Notes will not be entitled to
receive physical delivery of certificated Securities. Purchasers of Initial
Notes who are not QIBs or Institutional Accredited Investors (referred to
herein as the "Non-Global Purchasers") will receive certificated Initial Notes
bearing the Restricted Securities Legend set forth in Exhibit A hereto
("Definitive Notes"); provided, however, that upon transfer of such
certificated Securities to a QIB or Institutional Accredited Investor, such
certificated Securities will, unless the relevant Global Note has previously
been exchanged, be exchanged for an interest in a Global Note pursuant to the
provisions of Section 2.6 hereof. Definitive Notes will include the Restricted
Securities Legend unless removed in accordance with Section 2.6(g) hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be affixed or reproduced on the
Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
(1) Initial Notes for original issue in an aggregate principal amount of $150.0
million, and (2) Exchange Notes for issue only in a Registered Exchange Offer,
pursuant to the Registration Rights Agreement, in exchange for Initial Notes of
an equal principal amount, in each case upon a written order of the Company
signed by two Officers. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and whether the
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Notes are to be Initial Notes or Exchange Notes. Unless otherwise specified in
such order, the Initial Notes and the Exchange Notes shall be issued initially
as Global Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed $150.0 million.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York where (i) Notes may be presented for
registration of transfer or for exchange ("Registrar") and (ii) Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange (the "Register"). The Company may
appoint one or more co-registrars and one or more additional paying agents.
The term "Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional paying agent. The Company may change any Paying Agent
or Registrar without notice to any Holder. The Company shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall incorporate the terms of the TIA.
The agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC")to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent, including the
Trustee (who shall be deemed to have agreed by its execution of this
Indenture), to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee (unless the Paying Agent is the Trustee,
in which case it shall hold in trust for the Holders) all money held by the
Paying Agent
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for the payment of principal, premium, if any, or interest, on the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Company or a
Subsidiary, the Trustee shall serve as sole Paying Agent for the Notes.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least seven Business Days before each interest payment date and
at such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes.
Section 2.6. Transfer and Exchange. (a) Transfer and Exchange
of Definitive Notes. When Definitive Notes are presented to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive Notes;
or
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction (which may
call for a legal opinion) are met; provided, however, that the Definitive Notes
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form and substance reasonably satisfactory to
the Company and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) if such Definitive Notes are Transfer Restricted
Securities, then such Definitive Notes shall be accompanied by the
following additional information and documents, as applicable:
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(A) if such Transfer Restricted Securities are being
delivered to the Registrar by a Holder thereof for registration
in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such Transfer Restricted Securities are being
transferred to the Company or to a QIB in accordance with Rule
144A, a certification to that effect (in substantially the form
set forth on the reverse of the Security); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; or (x) to an Institutional Accredited Investor that is
acquiring the Note for its own account, or for the account of
such an Institutional Accredited Investor, with respect to which
it exercises sole discretion, in each case in a minimum principal
amount of the Notes of $250,000 for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act; or (y) in
reliance on another exemption from the registration requirements
of the Securities Act: (i) a certification to that effect (in
substantially the form set forth on the reverse of the Note),
(ii) if the Company or Registrar so requests, an Opinion of
Counsel reasonably acceptable to the Company and to the Registrar
to the effect that such transfer is in compliance with the
Securities Act and (iii) in the case of clause (x), a signed
letter from the transferee substantially in the form of Exhibit C
hereto.
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Note. A Definitive Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form and substance satisfactory to the Trustee and the Company, together with:
(i) if such Definitive Note is a Transfer Restricted Security,
certification, substantially in the form set forth on the reverse of the
Note, that such Definitive Note is being transferred to (x) a QIB in
accordance with Rule 144A under the Securities Act or (y) an
Institutional Accredited Investor that is acquiring the Note for its own
account, or for the account of such an Institutional Accredited
Investor, with respect to which it exercises sole discretion, in each
case in a minimum principal amount of
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the Notes of $250,000 for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of
the Securities Act and in the case of clause (y), (i) if the Company or
Registrar so requests, an Opinion of Counsel reasonably acceptable to
the Company and to the Registrar to the effect that such transfer is in
compliance with the Securities Act and (ii) a signed letter from the
transferee substantially in the form of Exhibit C hereto; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to make,
or to direct the Note Custodian to make, an adjustment on its books and
records with respect to such Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Note Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian, the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding, the Company
shall issue and the Trustee shall authenticate, upon written order of the
Company in the form of an Officer's Certificate, a new Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global Note
that is being transferred or exchanged (i) pursuant to an effective
registration statement under the Securities Act, (ii) that is not a
Transfer Restricted Note or (iii) pursuant to clause (A),(B) or (C)
below may upon request, and if accompanied by the information specified
below, exchange such beneficial interest for a Definitive Note of the
same aggregate principal amount. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for the
Depository from the Depository or its nominee on behalf of any Person
having a beneficial interest in a Global Note and upon receipt by the
Trustee of a written order or such other form of instructions as is
customary for the Depository or the Person designated by the Depository
as having such a
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beneficial interest in a Transfer Restricted Security only, the
following additional information and documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being the owner of a
beneficial interest in a Global Note, a certification from such
Person to that effect (in substantially the form set forth on the
reverse of the Note); or
(B) if such beneficial interest is being transferred (x)
to a QIB in accordance with Rule 144A or (y) pursuant to an
effective registration statement under the Securities Act, a
certification from such Person to that effect (in substantially
the form set forth on the reverse of the Note); or
(C) if such beneficial interest is being transferred (w)
pursuant to an exemption from registration in accordance with
Rule 144 or Regulation S under the Securities Act; or (x) to an
Institutional Accredited Investor that is acquiring the Note for
its own account, or for the account of such an Institutional
Accredited Investor, with respect to which it exercises sole
discretion, in each case in a minimum principal amount of the
Notes of $250,000 for investment purposes and not with a view to,
or for offer or sale in connection with, any distribution in
violation of the Securities Act; or (y) in reliance on another
exemption from the registration requirements of the Securities
Act: (i) a certification to that effect from the transferee or
transferor (in substantially the form set forth on the reverse of
the Note), (ii) if the Company or Registrar so requests, an
Opinion of Counsel reasonably acceptable to the Company and to
the Registrar to the effect that such transfer is in compliance
with the Securities Act, and (iii) in the case of clause (x), a
signed letter from the transferee substantially in the form of
Exhibit C hereto,
then the Trustee or the Note Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, the aggregate
principal amount of the Global Note to be reduced on its books and
records and, following such reduction, the Company will execute and the
Trustee will authenticate and make available for delivery to the
transferee a Definitive Note.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or
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otherwise, shall instruct the Trustee. The Trustee shall make such
Definitive Notes available for delivery to the Persons in whose names
such Notes are so registered in accordance with the instructions of the
Depository.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Notes in Absence of Depository.
If at any time:
(i) the Depository for the Notes notifies the Company that the
Depository is unwilling or unable to continue as Depository for the
Global Notes and a successor Depository for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes
under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate requesting the authentication and delivery of Definitive Notes to
the Persons designated by the Company, will authenticate and make available for
delivery Definitive Notes, in an aggregate principal amount equal to the
principal amount of Global Notes, in exchange for such Global Notes.
(g) Legend.
(i) Except as permitted by the following paragraph (ii), each
Note certificate evidencing the Global Notes and the Definitive Notes
(and all Notes issued in exchange therefor or substitution thereof)
shall bear a legend (the "Restricted Securities Legend") in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
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PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 or an effective registration statement
under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth above and
rescind any restriction on the transfer of such Transfer
Restricted Security; and
(B) any such Transfer Restricted Security represented by
a Global Note shall not be subject to the provisions set forth in
clause (i) of this Section 2.6(g) (such sales or transfers being
subject only to the provisions of Section 2.6(c) hereof);
provided,
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however, that with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a Global Note
for a Definitive Note that does not bear a legend, which request
is made in reliance upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such request is being
made pursuant to Rule 144 (such certification to be substantially
in the form set forth on the reverse of the Note).
(h) Cancellation and/or Adjustment of Global Note. At such time
as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for Definitive Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall
be reduced and an adjustment shall be made on the books and records of the
Trustee (if it is then the Note Custodian for such Global Note) or the Note
Custodian with respect to such Global Note, by the Trustee or the Note
Custodian, to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's or co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Note selected
for redemption in whole or in part pursuant to Article 3, except the
unredeemed portion of any Definitive Note being redeemed in part, or (b)
any Note for a period beginning 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Notes or 15 Business Days
before an interest payment date.
(iv) Prior to the due presentation for registration of transfer
of any Note, each of the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar may deem and treat the Person in whose
name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note
and for all other purposes whatsoever, whether or not such Note is
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overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar shall be affected by notice to the
contrary.
(v) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(j) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Note, a
Agent Member of the Depository or other Person with respect to the accuracy of
the records of the Depository or its nominee or of any Agent Member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than the Depository) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to
Holders under the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note in global
form shall be exercised only through the Depository subject to the applicable
rules and procedures of the Depository. The Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the
Depository with respect to its Agent Members and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including, without limitation, any transfers between
or among Agent Members or beneficial owners in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Registrar, or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the receipt of a written authentication order of the Company
signed by two Officers of the Company, shall authenticate a replacement Note if
the Trustee's requirements are met. If required by the Trustee or the Company,
an indemnity bond must be
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supplied by the Holder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for its expenses in replacing
a Note.
Every replacement Note is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding and those deemed paid pursuant to Section 8.2. A
Note does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.9. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Notes and make them available for delivery in exchange
for temporary Notes.
Section 2.10. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes.
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Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose
of cancelled Notes in accordance with its customary procedures (subject to the
record retention requirements of the Exchange Act); provided, however, that it
shall not be required to destroy any Notes. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, then it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date,
an Officers' Certificate setting forth (i) the paragraph of the Notes and/or
Section of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed and
(iv) the redemption price.
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Section 3.2. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption shall be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part. In the
event of partial redemption by lot, the particular Notes to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than
60 days prior to the redemption date by the Trustee from the outstanding Notes
not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. A new Note in principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the redemption date,
unless the Company defaults in payment of the redemption price, interest ceases
to accrue on Notes or portions of them called for redemption. Except as
provided in this Section 3.2, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
The provisions of the two preceding paragraphs of this Section
3.2 shall not apply with respect to any redemption affecting only a Global
Note, whether such Global Note is to be redeemed in whole or in part. In case
of any such redemption in part, the unredeemed portion of the principal amount
of the Global Note shall be in an authorized denomination.
Section 3.3. Notice of Redemption.
Subject to the provisions of Section 3.9 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
of Notes to be redeemed at such Holder's registered address, provided, however,
that the Company shall provide notice to the Trustee in accordance with Section
3.1 hereof at least five days prior to the mailing of the notice pursuant to
this Section 3.3.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
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(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed,
and, if the redemption is to occur pursuant to Section 3.7, a description of
the transaction or transactions that constitute the Change of Control; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
If any of the Notes to be redeemed is in the form of a Global
Note, then such notice shall be modified in form but not substance to the
extent appropriate to accord with the procedures of the Depository applicable
to redemptions.
At the Company's request and expense, the Trustee shall give the
notice of redemption in the Company's name; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, a notice signed by two Officers requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Notes or portions thereof called for redemption become irrevocably
due and payable on the redemption date at the redemption price. A notice of
redemption may not be conditional.
Section 3.5. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on
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all Notes or portions thereof to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary
to pay the redemption price of and accrued interest on, all Notes or portions
thereof to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest to the redemption
date shall be paid to the Person in whose name such Note was registered at the
close of business on such record date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.1 hereof.
Section 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the receipt of a written authentication order of the
Company signed by two Officers of the Company, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.7. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this Section
3.7, the Company shall not have the option to redeem the Notes pursuant to this
Section 3.7 prior to September 15, 2002. From and after September 15, 2002,
the Company shall have the option to redeem the Notes, in whole or in part,
upon not less than 30 nor more than 60 days notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on September 15 of each of the years
indicated below:
Percentage of
Year Principal Amount
---- ----------------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.438%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.958%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.479%
2005 and thereafter . . . . . . . . . . . . . . . . . . . . 100.000%
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(b) Notwithstanding the provisions of clause (a) of this
Section 3.7, at any time prior to September 15, 2000, the Company may, at its
option, on any one or more occasions, redeem up to 33-1/3% of the original
aggregate principal amount of Notes at a redemption price of 108.875% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date with all or a portion of the net proceeds of public sales
of common stock of the Company (the "Common Stock"); provided that at least 66
2/3% of the original aggregate principal amount of Notes remains outstanding
immediately after the occurrence of such redemption.
(c) Notwithstanding the provisions of clause (a) of this
Section 3.7, upon the occurrence of a Change of Control at any time on or prior
to September 15, 2002, the Company may, at its option, redeem in whole but not
in part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, to, the date of redemption (the "Change of Control Redemption Payment")
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) provided that such
redemption shall be made no more than 90 days after the occurrence of a Change
of Control. Provided the Company complies with Section 3.3 and the other
provisions hereof applicable to such redemption, a redemption pursuant to this
Section 3.7(c) can occur simultaneously with the occurrence of a Change of
Control. Notwithstanding any provision of Section 3.7(d), the Company shall
notify the Trustee and, by mail, the Holders of the Notes of its decision to
redeem the Notes pursuant to this Section 3.7(c) no later than 30 days after
the occurrence of a Change of Control.
(d) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof and, as to
Section 3.7(c) only, pursuant to the provisions of Section 4.13.
Section 3.8. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.13 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.9. Offer to Purchase By Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders of Notes and, to the
extent required by the terms thereof, to all
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holders or lenders of other Pari Passu Indebtedness, to purchase Notes and any
such Pari Passu Indebtedness (an "Asset Sale Offer"), it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof, giving effect to any
related offer for Pari Passu Indebtedness pursuant to Section 4.10, (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale
Offer shall be made to all Holders. The notice, which shall govern the terms
of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
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(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, a
Depository, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders and by holders of Pari Passu Debt exceeds the
Offer Amount, the Company shall select the Notes and Pari Passu Debt to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased) in the manner
provided in Section 4.10; and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
If any of the Notes subject to an Asset Sale Offer is in the form
of a Global Note, then such notice may be modified in form but not substance to
the extent appropriate to accord with the procedures of the Depository
applicable to repurchases.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.9. The Company, the Depository or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Note, and the Trustee, upon receipt of a written authentication
order of the Company signed by two Officers of the Company shall authenticate
and mail or deliver
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such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all such amounts then due.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to
the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or an
Affiliate of the Trustee, Registrar or co-registrar) where principal, premium,
if any, and interest on the Notes will be paid and where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to
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time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, the City of New York
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.3.
Section 4.3. Commission Reports.
Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, to the extent permitted by the Exchange Act, the Company shall file with
the Commission and provide, within 15 days after such filing, the Trustee and
Holders with the annual reports and the information, documents and other
reports that are specified in Sections 13 and 15(d) of the Exchange Act (but
without exhibits in the case of the Holders). In the event that the Company is
not permitted to file such reports, documents and information with the
Commission, the Company will provide substantially similar information to the
Trustee and the Holders as if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act within 15 days of the
date the Company would have been obligated to file such reports with the
Commission, were the Company permitted to file such reports with the
Commission. The Company also will comply with the other provisions of Section
314(a) of the TIA.
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Restricted Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, premium, if any, or interest on
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the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto. As of the date hereof, the Company's fiscal year ends on December 31
of each calendar year. In the event the Company changes its fiscal year, it
shall promptly notify the Trustee of such change.
(b) The Company and each Subsidiary Guarantor, if any, shall,
so long as any of the Notes are outstanding, deliver to the Trustee, within
five Business Days of any Officer becoming aware of any Default or Event of
Default, a certificate of two officers specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.5. Taxes.
The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.6. Stay, Extension and Usury Laws.
Each of the Company and the Subsidiary Guarantors, if any,
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and each of the Company and the Subsidiary Guarantors, if
any, (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
Section 4.7. Restricted Payments.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Equity Interests of
the Company or any Restricted Subsidiary (including, without limitation, any
payment in connection with any merger or consolidation involving the Company)
to the direct or indirect holders of Equity Interests of the Company or any
Restricted Subsidiary in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of
the Company or a Restricted Subsidiary and other than dividends or
distributions
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payable to the Company or a Restricted Subsidiary so long as, in the case of
any dividend or distribution payable on or in respect of any class or series of
securities issued by a Subsidiary other than a Wholly Owned Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities); (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company or
any Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary
of the Company; (iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes, except at final maturity or as a mandatory or
sinking fund repayment; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at the time of and
after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (2), (3), (4), (5), (6) and (7) of the
next succeeding paragraph), is less than the sum of (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the date of this Indenture to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (ii) 100% of the aggregate net cash proceeds
received by the Company from the issue and sale since the date of this
Indenture of Equity Interests of the Company or of debt securities of
the Company that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or convertible debt securities)
sold to a Subsidiary of the Company and other than Disqualified Stock or
debt securities that have been converted into Disqualified Stock), plus
(iii) 100% of the value of any issue or sale of Equity Interests (other
than
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Disqualified Stock) since the date of this Indenture used to acquire any
Persons engaged in the Oil and Gas Business or assets used in the Oil
and Gas Business, plus (iv) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash or the receipt of properties
used in the Oil and Gas Business, the lesser of (A) the net proceeds of
such sale, liquidation or repayment or the fair market value of property
received in exchange therefor and (B) the amount of such Restricted
Investment, plus (v) the amount received in cash as a return on
investment or interest on a loan constituting a Restricted Investment,
provided, however, that the foregoing provisions of this paragraph (c)
will not prohibit Restricted Payments in an aggregate amount not to
exceed $25 million.
The foregoing provisions shall not prohibit: (1) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of
this Indenture; (2) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company or any Restricted Subsidiary,
respectively in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to the Company or a Subsidiary of the Company) of
other Equity Interests of the Company or such Restricted Subsidiary,
respectively (other than any Disqualified Stock); provided that the amount of
any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from clause
(c)(ii) of the preceding paragraph; (3) the defeasance, redemption or
repurchase of any Disqualified Stock of the Company or any Restricted
Subsidiary in exchange for, or out of the substantially concurrent sale (other
than to the Company or a Subsidiary of the Company) of Disqualified Stock of
the Company or such Restricted Subsidiary, respectively; provided that (i) the
Disqualified Stock sold matures, is mandatorily redeemable, is convertible or
exchangeable into Indebtedness or Disqualified Stock of the Company or a
Restricted Subsidiary on a date that is no earlier than the corresponding date
with respect to the Disqualified Stock that has been so defeased, redeemed or
repurchased and (ii) the amount of any such net cash proceeds that are utilized
for any such defeasance, redemption or repurchase shall be excluded from clause
(c)(ii) of the preceding paragraph; (4) the defeasance, redemption or
repurchase of subordinated Indebtedness with the net cash proceeds from an
incurrence of subordinated Permitted Refinancing Debt or the substantially
concurrent sale (other than to a Subsidiary of the Company) of Equity Interests
of the Company; provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement or other acquisition
shall be excluded from clause (c)(ii) of the preceding paragraph; (5) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any
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Subsidiary of the Company held by any of the Company's (or any of its
Subsidiaries') employees pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of this Indenture;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.0 million in any
twelve-month period; and provided further that no Default or Event of Default
shall have occurred and be continuing immediately after such transaction; (6)
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options; and (7) the making of loans by the Company or any of its Restricted
Subsidiaries to officers or directors of the Company; provided that the
aggregate outstanding amount of such loans shall not exceed, at any time, $2.5
million plus any such loans outstanding on the date of this Indenture.
The amount of all Restricted Payments (other than cash) shall be
the fair market value (as determined in good faith by the Board of Directors or
a Responsible Officer of the Company, which determination shall be conclusive
evidence of compliance with this provision) on the date of the Restricted
Payment of the asset(s) proposed to be transferred by the Company or the
applicable Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment.
In computing Consolidated Net Income for purposes of clause (c)
of this Section 4.7, (i) the Company shall use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (ii) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment, would in the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment shall be deemed to have been made in compliance with this
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Net Income of the Company
for any period.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated shall be deemed
to be Restricted Payments at the time of such designation and shall reduce the
amount available for Restricted Payments under clause
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(c) of the first paragraph of this covenant. All such outstanding Investments
shall be deemed to constitute Investments in an amount equal to the greater of
the fair market value or the book value of such Investments at the time of such
designation. Such designation shall only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
Section 4.8. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(x) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock
or (2) with respect to any other interest or participation in, or measured by,
its profits, or (y) pay any Indebtedness owed by it to the Company or any of
its Restricted Subsidiaries, (ii) make loans or advances to the Company or any
of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) the New Credit
Facility as in effect as of the date of this Indenture, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof or any other Credit Facility, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements, refinancings or any other Credit
Facilities are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the New Credit Facility as in
effect on the date of this Indenture, (b) this Indenture and the Notes, (c)
applicable law, (d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except, in the case of Indebtedness, to
the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person and its Subsidiaries, or the property or assets of the Person and
its Subsidiaries, so acquired, provided that, such Indebtedness or Capital
Stock was permitted by the terms of this Indenture to be incurred, (e) by
reason of customary non-assignment provisions in leases entered into in the
ordinary course of business, (f) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so acquired, (g)
Permitted Refinancing Debt, provided that the restrictions contained in the
agreements governing such Permitted Refinancing
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Debt are no more restrictive than those contained in the agreements governing
the Indebtedness being refinanced, (h) any other security agreement, instrument
or document relating to Senior Debt in effect after the date of this Indenture,
provided that such encumbrances or restrictions are customary in connection
with such documents and that the terms and conditions of such encumbrances or
restrictions are no more restrictive than those encumbrances or restrictions
imposed in connection with the New Credit Facility, (i) Permitted Liens, (j)
customary provisions in joint venture agreements and other similar agreements
relating to the distribution of revenue from such joint venture or other
business venture or (k) any agreement relating to a sale and leaseback
transaction or capital lease, but only on the property subject to such
transaction or lease and only to the extent that such restrictions and
encumbrances are customary with respect to a sale and leaseback transaction or
capital lease.
Section 4.9. Incurrence of Indebtedness and Issuance of
Disqualified Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness, and neither the
Company nor any Subsidiary Guarantor, if any, shall issue any Disqualified
Stock and the Company shall not permit any of its Restricted Subsidiaries
(other than a Subsidiary Guarantor) to issue any shares of preferred stock to
any Person other than the Company or a Wholly Owned Restricted Subsidiary of
the Company; provided, however, that the Company and any Subsidiary Guarantor
may incur Indebtedness or issue shares of Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued
would have been at least 2.5 to 1, determined on a pro forma basis as
set forth in the definition of Fixed Charge Coverage Ratio; and
(ii) no Default or Event of Default shall have occurred and
be continuing at the time such additional Indebtedness is incurred or
such Disqualified Stock is issued or would occur as a consequence of the
incurrence of the additional Indebtedness or the issuance of the
Disqualified Stock.
Notwithstanding the foregoing, this Indenture shall not prohibit
any of the following (collectively, "Permitted Indebtedness"): (a) the
Indebtedness evidenced by the Notes;
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(b) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness pursuant to Credit Facilities, so long as the aggregate principal
amount of all Indebtedness outstanding under all Credit Facilities does not, at
any one time, exceed the greater of (1) $250.0 million and (2) the Borrowing
Base, provided that the Company may incur more than $250 million of
Indebtedness pursuant to Credit Facilities only if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available would have been at least 2.0 to 1,
determined on a pro forma basis as set forth in the definition of Fixed Charge
Coverage Ratio; (c) the guarantee by any Restricted Subsidiary of any
Indebtedness that is permitted by this Indenture to be incurred by the Company,
provided that the provisions of Section 4.16 are satisfied in connection with
the issuance of such guarantee; (d) all Indebtedness of the Company and its
Restricted Subsidiaries in existence as of the date of this Indenture; (e)
Indebtedness of any Restricted Subsidiary, provided that and for so long as
such Restricted Subsidiary is a Subsidiary Guarantor (and if on any date such
Subsidiary shall cease to be a Subsidiary Guarantor, such Indebtedness shall be
deemed incurred on such date); (f) intercompany Indebtedness between or among
the Company and any of its Wholly Owned Restricted Subsidiaries; provided,
however, that if the Company is the obligor on such Indebtedness, (i) such
Indebtedness is expressly subordinate to the payment in full of all Obligations
with respect to the Notes and (ii)(A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a Person
other than the Company or a Wholly Owned Restricted Subsidiary and (B) any sale
or other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be; (g) Indebtedness in connection with
one or more standby letters of credit, guarantees, performance bonds or other
reimbursement obligations, in each case, issued in the ordinary course of
business and not in connection with the borrowing of money or the obtaining of
advances or credit (other than advances or credit on open account, includible
in current liabilities, for goods and services in the ordinary course of
business and on terms and conditions which are customary in the Oil and Gas
Business, and other than the extension of credit represented by such letter of
credit, guarantee or performance bond itself); (h) Indebtedness under Interest
Rate Hedging Agreements, provided that the obligations under such agreements
are related to payment obligations on Indebtedness otherwise permitted by the
terms of this covenant and that the aggregate notional amount of such
agreements does not exceed 105% of the principal amount of the Indebtedness to
which such agreements relate; (i) Indebtedness under Oil and Gas Commodity
Price Risk Management Contracts; (j) the incurrence by the Company of
Indebtedness not otherwise permitted to be incurred pursuant to
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this paragraph, provided that the aggregate principal amount of all
Indebtedness incurred pursuant to this clause (j), together with all Permitted
Refinancing Debt incurred pursuant to clause (k) of this paragraph in respect
of Indebtedness previously incurred pursuant to this clause (j), does not
exceed $20.0 million at any one time outstanding; (k) Permitted Refinancing
Debt incurred in exchange for, or the net proceeds of which are used to
refinance, extend, renew, replace, defease or refund, Indebtedness that was
permitted by this Indenture to be incurred (including Indebtedness previously
incurred pursuant to this clause (k)); (l) accounts payable or other
obligations of the Company or any Restricted Subsidiary to trade creditors
created or assumed by the Company or such Restricted Subsidiary in the ordinary
course of business in connection with the obtaining of goods or services; (m)
Purchase Money Debt; (n) Indebtedness consisting of obligations in respect of
purchase price adjustments, guarantees or indemnities in connection with the
acquisition or disposition of assets; (o) production imbalances incurred in the
ordinary course of business; (p) Indebtedness of a Subsidiary Guarantor, if
any, in respect of the Subsidiary Guarantee of such Subsidiary Guarantor; and
(q) incurrence by a Restricted Subsidiary of Indebtedness, provided that the
aggregate principal amount of all Indebtedness for all Restricted Subsidiaries
pursuant to this clause (q) does not exceed $5 million at any one time
outstanding.
The Company shall not permit any Unrestricted Subsidiary to incur
any Indebtedness other than Non-Recourse Debt; provided, however, if any such
Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to
constitute an incurrence of Indebtedness by the Company.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time
of such Asset Sale at least equal to the fair market value (as determined in
good faith by the Board of Directors or an Officer of the Company or such
Restricted Subsidiary with responsibility for such transaction, which
determination shall be conclusive evidence of compliance with this provision)
of the assets or Equity Interests issued or sold or otherwise disposed of, (ii)
such Asset Sale complies, to the extent applicable, with Section 5.1 and 4.17,
as applicable and (iii) at least 75% of the consideration therefor received by
the Company or such Restricted Subsidiary from such Asset Sale is in the form
of cash, Cash Equivalents, properties and capital assets to be used by the
Company or any Restricted Subsidiary in the Oil and Gas Business or oil and gas
properties owned or held by another Person which are to be used in the Oil and
Gas Business of the Company or its Restricted Subsidiaries, or any combination
thereof (collectively the "cash consideration");
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provided that the amount of (x) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability and (y) any non-cash consideration received by the Company or any
such Restricted Subsidiary from such transferee that is converted by the
Company or such Restricted Subsidiary into cash within 180 days of closing such
Asset Sale, shall be deemed to be cash for purposes of this provision (to the
extent of the cash received); provided, however, that the Company and its
Restricted Subsidiaries may make Asset Sales with a fair market value not
exceeding $15 million in the aggregate in any period of twelve calendar months,
free from any of the restrictions, requirements or other provisions set forth
in this Section 4.10.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds, at its option, in any
order or combination: (a) to reduce Senior Debt, Guarantor Senior Indebtedness
or Pari Passu Indebtedness (provided that, in connection with a reduction of
Pari Passu Indebtedness, the Company or such Restricted Subsidiary redeems a
pro rata portion of the Notes), (b) to make Permitted Investments, (c) to make
investments in interests in other Oil and Gas Businesses, (d) to make capital
expenditures in respect of the Company's or its Restricted Subsidiaries' Oil
and Gas Business or to purchase long-term assets that are used or useful in
such Oil and Gas Business or (e) to repurchase any Notes, as provided below.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce Senior Debt that is revolving debt or otherwise invest such
Net Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied as provided in the first
sentence of this paragraph shall (after the expiration of the periods specified
in this paragraph) be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall make an Asset Sale Offer to purchase the maximum
principal amount of Notes and any other Pari Passu Indebtedness to which the
Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to, in the case of the Notes, 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase or, in the case of any other Pari Passu Indebtedness, 100% of
the principal amount thereof (or with respect to discount Pari Passu
Indebtedness, the accrued value thereof) on the date of purchase, in each case,
in accordance with the procedures set forth in Section 3.9 hereof or the
agreements governing Pari Passu Indebtedness, as applicable. To
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the extent that the aggregate principal amount (or accreted value, as the case
may be) of the Notes and Pari Passu Indebtedness tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate purposes. If the sum of (i) the
aggregate principal amount of Notes surrendered by Holders thereof, and (ii)
the aggregate principal amount or accreted value, as the case may be, of other
Pari Passu Indebtedness surrendered by holders or lenders thereof, exceeds the
amount of Excess Proceeds, the Trustee and the trustee or other lender
representatives for the Pari Passu Indebtedness shall select the Notes and
other Pari Passu Indebtedness to be purchased on a pro rata basis, based on the
aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon completion of such Asset Sale
Offer, the Excess Proceeds shall be reset at zero.
In the event the Company, pursuant to this Section 4.10, makes an
Asset Sale Offer to purchase the Notes and any other Pari Passu Indebtedness to
which such Asset Sale Offer applies, the Company shall comply with applicable
securities laws and regulations, including any applicable requirements of
Section 14(e) of, and Rule 14e-1 under, the Exchange Act.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any of
its Affiliates (each of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Subsidiary than those that would have been obtained in
a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to an
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5 million, an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above, (b)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10 million, a
resolution of the Board of Directors set forth in an Officer's Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with clause (i) above and that such Affiliate Transaction
or series of related Affiliate Transactions has been approved by a majority of
the members of the Board of Directors of the Company who are disinterested with
respect to such Affiliate Transaction or series of related Affiliate
Transactions (which resolution shall be conclusive evidence of compliance with
this provision) and (c) with respect to any Affiliate
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Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $15 million, an Officer's Certificate as described
in clause (b) above and an opinion as to the fairness to the Company or such
Subsidiary of such Affiliate Transaction or series of related Affiliate
Transactions from a financial point of view issued by an accounting, appraisal,
engineering or investment banking firm of national standing (for purposes of
this clause (c) such opinion and the resolution described in clause (b) above
shall be conclusive evidence of compliance with this provision), provided,
however, that the foregoing shall not apply to (1) reasonable fees and
compensation paid to (including issuances and grants of securities and stock
options), and employment agreements and stock option and ownership plans for
the benefit of, officers, directors, employees or consultants of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management, (2) transactions between or
among the Company and/or its Restricted Subsidiaries, (3) Restricted Payments
and Permitted Investments that are permitted by Section 4.7 and the definition
of Permitted Investments, (4) indemnification payments made to officers,
directors and employees of the Company or its Subsidiaries pursuant to charter,
by-law, statutory or contractual provisions, (5) any contracts, agreements or
understandings existing as of the date of this Indenture and (6) any contracts,
agreements or understandings between the Company and any of its Affiliates with
respect to the lease by the Company from such Affiliate of office space for the
Company in New York City, including any collateral agreements entered into with
respect to such lease.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien securing Indebtedness of any kind (other than
Permitted Liens) upon any of its property or assets, now owned or hereafter
acquired, unless all payments under the Notes are secured by such Lien prior
to, or on an equal and ratable basis with, the Indebtedness so secured for so
long as such Indebtedness is secured by such Lien.
No Subsidiary Guarantor, if any, shall directly or indirectly
create, incur, assume or suffer to exist any Lien (other than Permitted Liens)
that secures obligations under any Pari Passu Indebtedness or under any
subordinated Indebtedness of such Subsidiary Guarantor on any asset or property
of such Subsidiary Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless the Subsidiary Guarantee
of such Subsidiary Guarantor is equally and ratably secured with the
obligations so secured or until such time as such obligations are no longer
secured by a Lien.
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Section 4.13. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
the Notes shall, unless the Company shall have elected to redeem the Notes
prior to September 15, 2002 pursuant to Section 3.7(c), have the right to
require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount of the Notes plus accrued and unpaid
interest if any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder stating: (1) a description of the transaction or
transactions that constitute the Change of Control; (2) that the Change of
Control Offer is being made pursuant to this Section 4.13 and that all Notes
tendered shall be accepted for payment; (3) the purchase price and the purchase
date described below (the "Change of Control Payment Date"); (4) that any Note
not tendered will not be purchased and shall continue to accrue interest; (5)
that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest, if any, after the Change of Control Payment
Date; (6) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer shall be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, or transfer by book-entry transfer to the Company, a Depository, if
appointed by the Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day preceding the
Change of Control Payment Date; (7) that Holders shall be entitled to withdraw
their election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control Payment
Date, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (8) that Holders whose Notes are being purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company and each
Subsidiary Guarantor, if any, shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable to such party in
connection with the repurchase of the Notes as a result of a Change of Control.
(b) On a Business Day that is no earlier than 30 days nor
later than 60 days from the date that the Company mails or
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causes to be mailed notice of the Change of Control to the Holders (the "Change
of Control Payment Date"), the Company shall, to the extent lawful, (i) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all the Notes or portions thereof
so tendered and (iii) deliver or cause to be delivered to the Trustee the
relevant Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of such Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each Holder of the Notes
so tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(c) Prior to complying with the provisions of this Section
4.13, but in any event within 30 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of the Notes required by this Section 4.13.
The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are
applicable.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.13 and purchases all Notes (or
portions thereof) validly tendered and not withdrawn under such Change of
Control Offer.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company and its Restricted
Subsidiaries shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) the Company's corporate existence, and the
corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter, partnership agreement and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries;
provided, however, that the Company and its Restricted Subsidiaries shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership
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or other existence of any of its Restricted Subsidiaries, if the Board of
Directors of the relevant Person shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 4.15. No Senior Subordinated Debt.
Notwithstanding the provisions of Section 4.9 hereof, (i) the
Company shall not incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment
to any Senior Debt of the Company and senior in any respect in right of payment
to the Notes and (ii) the Subsidiary Guarantors, if any, shall not directly or
indirectly incur, create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is subordinate or junior in right of payment to
Senior Debt and senior in any respect in right of payment to the Subsidiary
Guarantees; provided, however, that the foregoing limitations shall not apply
to distinctions between categories of Indebtedness that exist by reason of any
Liens arising or created in respect of some but not all such Indebtedness.
Section 4.16. Guarantees of Indebtedness by Restricted
Subsidiaries.
(a) The Company shall not permit any Restricted Subsidiary to
guarantee the payment of any Indebtedness of the Company or any Indebtedness of
any other Restricted Subsidiary (in each case, the "Guaranteed Debt" ) unless
(i) if such Restricted Subsidiary is not a Subsidiary Guarantor, such
Restricted Subsidiary simultaneously executes and delivers a supplemental
Indenture, substantially in the form of Exhibit D hereto or such other form as
may be reasonably satisfactory to the Trustee and the Company, to this
Indenture providing for a Subsidiary Guarantee of payment of the Notes by such
Restricted Subsidiary, (ii) if the Notes or the Subsidiary Guarantee (if any)
of such Restricted Subsidiary are subordinated in right of payment to the
Guaranteed Debt, the Subsidiary Guarantee under the supplemental Indenture
shall be subordinated to such Restricted Subsidiary's guarantee with respect to
the Guaranteed Debt substantially to the same extent as the Notes or the
Subsidiary Guarantee are subordinated to the Guaranteed Debt under this
Indenture, (iii) if the Guaranteed Debt is by its express terms subordinated in
right of payment to the Notes or the Subsidiary Guarantee (if any) of such
Restricted Subsidiary, any such guarantee of such Restricted Subsidiary with
respect to the Guaranteed Debt shall be subordinated in right of payment to
such Restricted Subsidiary's Subsidiary Guarantee with respect to the Notes
substantially to the same extent as the Guaranteed Debt is subordinated to the
Notes or the Subsidiary Guarantee (if any) of such Restricted Subsidiary, (iv)
until the Notes have been
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repaid in full or defeased in accordance with Section 8.2 or 8.3, such
Restricted Subsidiary waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Subsidiary Guarantee; and (v) if such Restricted Subsidiary is required under
clause (i) to execute and deliver a supplemental Indenture, at the time of such
delivery such Restricted Subsidiary shall deliver to the Trustee an Opinion of
Counsel to the effect that (A) such Subsidiary Guarantee of the Notes has been
duly executed and authorized and (B) such Subsidiary Guarantee of the Notes
constitutes a valid, binding and enforceable obligation of such Restricted
Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy,
insolvency or similar laws (including, without limitation, all laws relating to
fraudulent transfers) and except insofar as enforcement thereof is subject to
general principles of equity; provided that this paragraph (a) shall not be
applicable to any guarantee of any Restricted Subsidiary that (A) existed at
the time such Person became a Restricted Subsidiary of the Company and (B) was
not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary of the Company.
(b) Notwithstanding the foregoing and the other provisions of
this Indenture, any Subsidiary Guarantee by a Restricted Subsidiary of the
Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture) or (ii) in the case of a guarantee incurred pursuant to clause
(a) of this covenant, the release or discharge of the guarantee which resulted
in the creation of such Subsidiary Guarantee, except a discharge or release by
or as a result of payment under such guarantee.
Section 4.17. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries.
The Company shall not sell or otherwise dispose of any shares of
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary (other than a Subsidiary Guarantor), directly or indirectly, to
issue or sell or otherwise dispose of any shares of its Capital Stock except
(i) to the Company or a Wholly Owned Restricted Subsidiary, (ii) if,
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary remains a Restricted Subsidiary, (iii) shares of
nonvoting Capital Stock of Restricted Subsidiaries may be issued or sold to
employees or directors of the Company or any Subsidiary; or (iv) if all shares
of Capital Stock of such Restricted Subsidiary are sold or otherwise
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disposed of. In connection with any such sale or disposition of Capital Stock,
the Company shall comply with Section 4.10 hereof.
Section 4.18. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or its Restricted Subsidiaries may enter into a sale and leaseback
transaction if (i) the Company could have incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the test set forth in the first paragraph of Section 4.9 hereof or
(ii) the gross cash proceeds of such sale and leaseback transaction are at
least equal to the fair market value (as determined in good faith by a
resolution the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee, which determination shall be conclusive evidence of
compliance with this provision) of the property that is the subject of such
sale and leaseback transaction and the transfer of assets in such sale and
leaseback transaction is permitted by, and the Company applies the net proceeds
of such transaction in compliance with Section 4.10 hereof.
Section 4.19. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any material respect in any business other than the
Oil and Gas Business.
ARTICLE 5
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Substantially All
Assets.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to another Person,
and the Company shall not permit any of its Restricted Subsidiaries to enter
into any such transaction or series of transactions if such transaction or
series of transactions would, in the aggregate, result in a sale, assignment,
transfer, lease, conveyance, or other disposition of all or substantially all
of the properties or assets of the Company to another Person, in either case
unless (i) the Company is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (the "Surviving Entity") is a corporation organized or
existing under the laws of the United States, any state thereof or the District
of Columbia; (ii) the Surviving Entity (if the Company is not the continuing
obligor under this Indenture) assumes all the obligations of the
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Company under the Notes and this Indenture pursuant to a supplemental Indenture
in a form reasonably satisfactory to the Trustee; (iii) immediately before and
after giving effect to such transaction or series of transactions no Default or
Event of Default exists; (iv) immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries which becomes the obligation of the Company or any of
its Restricted Subsidiaries as a result of such transaction or series of
transactions as having been incurred at the time of such transaction or series
of transactions), the Consolidated Net Worth of the Company or the Surviving
Entity (if the Company is not the continuing obligor under this Indenture) is
equal to or greater than the Consolidated Net Worth of the Company immediately
prior to such transaction or series of transactions and (v) the Company or
Surviving Entity (if the Company is not the continuing obligor under this
Indenture) will, at the time of such transaction or series of transactions and
after giving pro forma effect thereto as if such transaction or series of
transactions had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the test set forth in the first paragraph of Section 4.9 hereof.
Each Subsidiary Guarantor, if any, unless it is the other party to the
transactions described above, shall have confirmed by supplemental Indenture
that its Subsidiary Guarantee shall apply to such Person's obligations under
this Indenture and the Notes. Notwithstanding the foregoing clauses (i) (iv)
and (v), any Restricted Subsidiary may consolidate with, merge into or transfer
all or part of its properties and assets to the Company, and any Wholly Owned
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to another Wholly Owned Restricted Subsidiary.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company
in accordance with Section 5.1 hereof, the Surviving Entity shall succeed to,
and be substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the Surviving Entity and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.1 hereof, and,
provided further that, in all events, the Company shall not be released from
its obligations under Section 7.7.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on the
Notes when the same becomes due and payable and the Default continues
for a period of 30 days, whether or not such payment is prohibited by
the provisions of Article 10 hereof;
(2) the Company defaults in the payment of the principal of or
premium, if any, on the Notes, whether or not such payment is prohibited
by the provisions of Article 10 hereof;
(3) the Company or a Subsidiary Guarantor fails to observe or
perform any covenant, condition or agreement on the part of the Company
or a Subsidiary Guarantor to be observed or performed pursuant to
Article 5 hereof;
(4) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Sections 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.15, 4.18 and 4.19 hereof and the Default continues for the
period and after the notice specified below;
(5) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Notes or this
Indenture and the Default continues for consecutive days after the
notice specified below;
(6) except as permitted herein, any Subsidiary Guarantee shall
be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or a
Subsidiary Guarantor, or any Person acting on behalf of a Subsidiary
Guarantor, shall deny or disaffirm such Subsidiary Guarantor's
obligation under its Subsidiary Guarantee;
(7) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or shall be created
hereafter, which default (a) is caused by a failure to pay principal of
such Indebtedness prior to the expiration of
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the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there is then existing
a Payment Default or the maturity of which has been so accelerated,
aggregates $10 million or more;
(8) a final non-appealable judgment or order or final non-
appealable judgments or orders are rendered against the Company or any
Restricted Subsidiary that remain unpaid or discharged for a period of
60 days and that require the payment of money, either individually or in
an aggregate amount, in excess of $10 million;
(9) the Company or any Restricted Subsidiary:
(a) commences a voluntary case or proceeding,
(b) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian of it or
for all or substantially all of its property or
(d) makes a general assignment for the benefit of its
creditors;
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted
Subsidiary, in an involuntary case or proceeding,
(b) appoints a Custodian of the Company, any Restricted
Subsidiary, or for all or substantially all of the property of
the Company or any Restricted Subsidiary, or
(c) orders the liquidation of the Company or any
Restricted Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 consecutive days.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at
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least 25% in principal amount of the then outstanding Notes notify the Company
and the Trustee, of the Default and the Company does not cure the Default
within 30 consecutive days after receipt of the notice. A Default under clause
(5) is not an Event of Default until the Trustee notifies the Company, or the
Holders of at least 25% in principal amount of the then outstanding Notes
notify the Company and the Trustee, of the Default and the Company does not
cure the Default within 60 days after receipt of the notice. Each notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default specified
in clauses (9) and (10) of Section 6.1 hereof) relating to the Company or any
Subsidiary Guarantor, if any, occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in principal amount of the then
outstanding Notes by written notice to the Company and the Trustee, may declare
the unpaid principal amount of and any accrued and unpaid interest on all the
Notes to be due and payable immediately. If payment of the Notes is
accelerated because of an Event of Default, the Company or the Trustee shall
notify the holders of Designated Senior Debt of such acceleration. Upon such
declaration the principal and interest shall be due and payable immediately;
provided, however, that so long as any Designated Senior Debt or any commitment
therefor is outstanding, any such notice or declaration shall not become
effective until the earlier of (a) five Business Days after such notice is
delivered to the Representative for the Designated Senior Debt or (b) the
acceleration of any Designated Senior Debt and thereafter, payments on the
Notes pursuant to this Article 6 shall be made only to the extent permitted
pursuant to Article 10 herein. Notwithstanding the foregoing, if any Event of
Default specified in clause (9) or (10) of Section 6.1 hereof relating to the
Company, or any Significant Subsidiary occurs, such an amount shall ipso facto
become and be immediately due and payable without any declaration or other act
or notice on the part of the Trustee or any Holder.
After a declaration of acceleration under this Indenture, but
before a judgment or decree for payment of principal, premium, if any, and
interest on the Notes due under this Article 6 has been obtained by the
Trustee, Holders of a majority in principal amount of the then outstanding
Notes by written notice to the Company and the Trustee may rescind an
acceleration and its consequences if (i) the Company or any Subsidiary
Guarantor, if any, has paid or deposited with the Trustee a sum sufficient to
pay (a) all sums paid or advanced by the Trustee under this Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and (b) all overdue interest on the Notes, if any,
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(ii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iii) all existing Events of Default (except
nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration) have been cured or waived.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment Default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.5. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability, it being understood that (subject to Section
7.1) the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders. The Trustee may take any
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other action deemed proper by the Trustee which is not inconsistent with such
direction.
Section 6.6. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.7. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company or any Subsidiary
Guarantor, if any, for the whole amount of principal of, premium, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further
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amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company or any of the Subsidiary Guarantors, if any (or any other obligor
upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and may be a member of the creditors' committee.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall, subject to the provisions of Article 10, pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.8 and 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
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Second: to Senior Debt to the extent required by Article 10;
Third: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and accrued interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and accrued interest, as the case may
be, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any notices, requests,
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine those certificates and opinions which, by any provision of
this Indenture, are specifically required to be furnished to the Trustee
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers.
The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder
shall have furnished to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (d) of this Section.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent (other than any agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Subsidiary
Guarantor, if any, shall be sufficient if signed by an Officer of the Company
or such Subsidiary Guarantor.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have furnished to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article 4 hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to Sections 4.1, 4.4
and 6.1(1) or (2) hereof or (ii) any Default or Event of Default of which the
Trustee shall have received written notification. For purposes of determining
the Trustee's responsibility hereunder, whenever reference is made in this
Indenture to a Default or Event of Default, such reference shall be construed
to refer only to a Default or Event of Default of which the Trustee is deemed
to have notice pursuant to this Section 7.2(g)
(h) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(i) the Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, conditions, or agreements on
the part of the Company, except as
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otherwise set forth herein, but the Trustee may require of the Company full
information and advice as to the performance of the covenants, conditions and
agreements contained herein and shall be entitled in connection herewith to
examine the books, records and premises of the Company.
(j) The permissive rights of the Trustee to perform the acts
enumerated in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for other than its gross negligence or willful
misconduct.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, the
Subsidiary Guarantors, if any, or any Affiliate of the Company with the same
rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest, as defined in Section 310(b) of the
TIA, it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same
with like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Notes, or
the Subsidiary Guarantees, if any, it shall not be accountable for the
Company's use of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this Indenture, and it
shall not be responsible for any statement or recital herein or in any
certificate delivered pursuant hereto or any statement in the Notes or any
other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is actually known to the Trustee, the Trustee shall mail to Holders of Notes
a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on, any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.
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Section 7.6. Reports by Trustee to Holders of the Notes.
Within 60 days after each September 15, beginning with the
September 15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2) and transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
The Company and the Subsidiary Guarantors, if any, shall pay to
the Trustee from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder, including, without limitation,
extraordinary services such as default administration. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company and the Subsidiary Guarantors, if any, shall
reimburse the Trustee upon demand for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company and the Subsidiary Guarantors, if any, shall
indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company and the Subsidiary
Guarantors, if any (including this Section 7.7) and investigating or defending
itself against any claim (whether asserted by the Company, the Subsidiary
Guarantors, if any, or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Trustee shall notify
the Company and the Subsidiary Guarantors, if any, promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
and the Subsidiary Guarantors shall not relieve the Company and the Subsidiary
Guarantors, if any, of their obligations hereunder. The Company and the
Subsidiary Guarantors, if any, shall defend the claim and
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the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company and the Subsidiary Guarantors, if any, shall pay the
reasonable fees and expenses of such counsel. The Company and the Subsidiary
Guarantors, if any, need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.
The obligations of the Company and the Subsidiary Guarantors, if
any, under this Section 7.7 are joint and several and shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's and the Subsidiary Guarantors', if any
payment obligations in this Section, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee. Such Lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(9) or (10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of
Notes of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
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This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company and the Subsidiary
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.4 hereof, be deemed to have been discharged from their
obligations with respect to all outstanding Notes and the Subsidiary
Guarantees, if any, thereof on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.5
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due from the trust fund described in
Section 8.4 hereof, and as more fully set forth in such Section, (b) the
Company's obligations with respect to such Notes under Article 2 and Section
4.2 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith
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and (d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.2 notwithstanding the prior
exercise of its option under Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company and the Subsidiary
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.4 hereof, be released from their obligations under the
covenants contained in Sections 4.3, 4.4, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof and in clause (iv) and clause (v)
of Section 5.1 and the covenants contained in the Subsidiary Guarantees, if
any, with respect to the outstanding Notes on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
compliance certificate, direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 hereof, but, except as specified above, the remainder of this
Indenture, such Notes and such Subsidiary Guarantees, if any, shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(3)
(but only with respect to the Company's failure to observe or perform the
covenants, conditions and agreements of the Company under clause (iv) and
clause (v) of Section 5.1), 6.1(4), 6.1(7) and 6.1(8) hereof shall not
constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
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(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any,
and interest, on the outstanding Notes on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit) or
insofar as Section 6.1(9) or 6.1(10) hereof is concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the
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effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Notes over the other creditors of the
Company, or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.
Section 8.5. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company and the Subsidiary Guarantors, if any, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.4 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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Section 8.6. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and the
Subsidiary Guarantors, if any, under this Indenture, the Notes and the
Subsidiary Guarantees, if any, shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof, as the case may be;
provided, however, that if the Company or any Subsidiary Guarantor, if any,
makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company or such Subsidiary
Guarantor shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company, the
Subsidiary Guarantors, if any, and the Trustee may amend or supplement this
Indenture, the Notes or the Subsidiary Guarantees, if any, without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
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(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities (provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, as amended (the
"Code"), or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code);
(c) to provide for the assumption of the Company's or any
Subsidiary Guarantor's, if any, obligations to the Holders of the Notes
in the case of any transaction permitted under Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Note;
(e) to secure the Notes;
(f) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(g) to add a Subsidiary Guarantee under this Indenture.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, if
any, as the case may be, authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Sections 9.6, 11.4 and 11.5 hereof, the Trustee shall join with
the Company and the Subsidiary Guarantors, if any, in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that adversely affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, the Company, the
Subsidiary Guarantors, if any, and the Trustee may amend or supplement this
Indenture, the Notes and the Subsidiary Guarantees, if any, with the consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for the
Notes), and, subject to Sections 6.4 and 6.7 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if
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any, or interest on the Notes) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for the Notes).
In addition, any amendment to the provisions of Article 10 of
this Indenture shall require the consent of the Holders of at least 66 2/3% in
aggregate principal amount of the Notes then outstanding if such amendment
would adversely affect the rights of Holders of Notes; provided that, no
amendment may be made to the provisions of Article 10 of this Indenture that
adversely affects the rights of any holder of Senior Debt then outstanding
unless the holders of such Senior Debt (or any group or representative thereof
authorized to consent) consent to such change.
Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company or any Subsidiary Guarantor,
if any, with any provision of this Indenture, the Notes or a Subsidiary
Guarantee, if any. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes (except as provided above with respect to Sections 3.9, 4.10 and
4.13 hereof);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal or premium, if any, or interest on the
Notes;
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(g) make any change in the foregoing amendment and waiver
provisions; or
(h) except as provided under clause (b) of Section 4.16 or
Section 8.2 and 8.3, release a Subsidiary Guarantor, if any, from its
obligations under its Subsidiary Guarantee, if any, or make any change
in a Subsidiary Guaranty, if any, that would adversely affect the
Holders.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, if
any, as the case may be, authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Sections 9.6, 11.4 and 11.5 hereof, the Trustee shall join with the Company and
the Subsidiary Guarantors, if any, in the execution of such amended or
supplemental Indenture unless such amended or 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, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.2 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent
Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the
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date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6. Trustee to Sign Amendment, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
Neither the Company nor any Subsidiary Guarantor, if any, may sign an amendment
or supplemental Indenture until its respective Board of Directors approves it.
In executing any amended or supplemental Indenture, the Trustee shall be
entitled to receive and (subject to Section 7.1) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture and that there has been compliance with all
conditions precedent.
ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate.
The Company and each Subsidiary Guarantor, if any, agree, and
each Holder by accepting a Note agrees, that (i) the Indebtedness evidenced by
(a) the Notes, including, but not limited to, the payment of principal of,
premium, if any, and interest on the Notes, and any other payment Obligation of
the Company in respect of the Notes (including any obligation to repurchase the
Notes) is subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full in cash of all Senior
Debt of the Company (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), (b) the Subsidiary Guarantees, if
any, and other payment Obligations in respect of the Subsidiary Guarantees are
subordinate in right of payment, to the extent and in the manner provided in
this Article and (ii) the subordination is for the benefit of the Holders of
Senior Debt.
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Section 10.2. Certain Definitions.
"Bankruptcy Law" means title 11, U.S. Code or any similar Federal
or state law for the relief of debtors.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt.
"Senior Debt" means (i) Indebtedness of the Company or any
Subsidiary of the Company under or in respect of any Credit Facility, whether
for principal, interest (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law, whether or
not the claim for such interest is allowed as a claim in such proceeding),
reimbursement obligations, fees, commissions, expenses, indemnities or other
amounts, and (ii) any other Indebtedness permitted under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes. Notwithstanding anything to the contrary in the
foregoing sentence, Senior Debt will not include (w) any liability for federal,
state, local or other taxes owed or owing by the Company, (x) any Indebtedness
of the Company to any of its Subsidiaries or other Affiliates, (y) any trade
payables or (z) any Indebtedness that is incurred in violation of this
Indenture (other than Indebtedness under (i) the New Credit Facility or (ii)
any other credit facility that is incurred on the basis of a representation by
the Company to the applicable lenders that it is permitted to incur such
Indebtedness under this Indenture).
A "distribution" may consist of cash, securities or other
property, by set-off or otherwise.
All Designated Senior Debt now or hereafter existing and all
other Obligations relating thereto shall not be deemed to have been paid in
full unless the holders or owners thereof shall have received payment in full
in cash (or other form of payment consented to by the holders of such
Designated Senior Debt) with respect to such Designated Senior Debt and all
other Obligations with respect thereto.
Section 10.3. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of property or securities
to creditors of the Company in a liquidation or dissolution of the Company or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, or in an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities:
(1) the holders of Senior Debt of the Company shall be
entitled to receive payment in full in cash of all
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Obligations in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt, whether or not a claim for such interest would
be allowed in such proceeding) before the Holders of Notes shall be
entitled to receive any payment with respect to the Notes and related
Obligations (except in each case that Holders of Notes may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Debt and any securities issued in exchange for Senior
Debt and payments made from any defeasance trust created pursuant to
Section 8.1 hereof provided that the applicable deposit does not violate
Article 8 or 10 of this Indenture); and
(2) until all Obligations with respect to Senior Debt of the
Company (as provided in subsection (1) above) are paid in full in cash,
any payment or distribution to which the Holders of Notes and the
related Subsidiary Guarantees, if any, would be entitled shall be made
to holders of Senior Debt of the Company (except that Holders of the
Notes and the related Subsidiary Guarantees, if any, may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Debt and any securities issued in exchange for Senior
Debt and payments made from any defeasance trust created pursuant to
Section 8.1 hereof provided that the applicable deposit does not violate
Article 8 or 10 of this Indenture).
(b) Upon any payment or distribution of property or securities
to creditors of a Subsidiary Guarantor, if any, in a liquidation or dissolution
of such Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
property, or in an assignment for the benefit of creditors or any marshalling
of such Subsidiary Guarantor's assets and liabilities:
(1) the holders of Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full in cash of all Obligations
in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt, whether or not a claim for such interest would
be allowed in such proceeding) before the Holders of Notes and the
related Subsidiary Guarantees, if any, shall be entitled to receive any
payment or distribution with respect to the Subsidiary Guarantee made by
such Subsidiary Guarantor (except in each case that Holders of Notes and
the related Subsidiary Guarantees, if any, may receive securities that
are subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made
from any defeasance trust created pursuant to Section 8.1 hereof
provided that the applicable
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deposit does not violate Article 8 or 10 of this Indenture); and
(2) until all Obligations with respect to Senior Debt of such
Subsidiary Guarantor (as provided in subsection (1) above) are paid in
full in cash, any payment or distribution to which the Holders of Notes
and the related Subsidiary Guarantees, if any, would be entitled shall
be made to holders of Senior Debt of such Subsidiary Guarantor (except
that Holders of Notes and the related Subsidiary Guarantees, if any, may
receive securities that are subordinated at least to the same extent as
the Notes to Senior Debt and any securities issued in exchange for
Senior Debt and payments made from any defeasance trust created pursuant
to Section 8.1 hereof provided that the applicable deposit does not
violate Article 8 or 10 of this Indenture).
(c) Under the circumstances described in this Section 10.3,
the Company, any Subsidiary Guarantor or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person making any payment or
distribution of cash or other property or securities is authorized or
instructed to make any payment or distribution to which the Holders of the
Notes and the related Subsidiary Guarantees, if any, would otherwise be
entitled (other than securities that are subordinated at least to the same
extent as the Notes to Senior Debt and any securities issued in exchange for
Senior Debt and payments made from any defeasance trust referred to in the
second parenthetical clause of each of clauses (a)(1), (b)(1), (a)(2) and
(b)(2) above, which shall be delivered or paid to the Holders of Notes as set
forth in such clauses) directly to the holders of the Senior Debt of the
Company and any Subsidiary Guarantors, as applicable (pro rata to such holders
on the basis of the respective amounts of Senior Debt of the Company and any
Subsidiary Guarantor held by such holders), or their Representatives, or to any
trustee or trustees under any other indenture pursuant to which any such Senior
Debt may have been issued, as their respective interests appear, to the extent
necessary to pay all such Senior Debt in full, in cash or cash equivalents
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
To the extent any payment of or distribution in respect of Senior
Debt (whether by or on behalf of the Company or any Subsidiary Guarantor, if
any, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment or distribution is
recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Debt or part
thereof originally
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intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred. To the extent the obligation to repay any
Senior Debt is declared to be fraudulent, invalid or otherwise set aside under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then the obligation so declared fraudulent, invalid or otherwise set aside (and
all other amounts that would come due with respect thereto had such obligation
not been so affected) shall be deemed to be reinstated and outstanding as
Senior Debt for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
Section 10.4. Default on Designated Senior Debt.
The Company and the Subsidiary Guarantors, if any, may not make,
with respect to the Company, any payment (whether by redemption, purchase,
retirements, defeasance or otherwise) upon or in respect of the Notes (other
than securities that are subordinated at least to the same extent as the Notes
to Senior Debt and any securities issued in exchange for Senior Debt and
payments and other distributions made from any defeasance trust created
pursuant to Section 8.1 hereof if the applicable deposit does not violate
Article 8 or 10 of this Indenture) and, with respect to a Subsidiary Guarantor,
any payment with respect to its Subsidiary Guarantee, if any (other than
securities that are subordinated at least to the same extent as the Notes to
Senior Debt and any securities issued in exchange for Senior Debt and payments
and other distributions made from any defeasance trust created pursuant to
Section 8.1 hereof if the applicable deposit does not violate Article 8 or 10
of this Indenture), until all principal and other Obligations with respect to
the Senior Debt of the Company or such Subsidiary Guarantor, as applicable,
have been paid in full if:
(i) a default in the payment of any principal of, premium,
if any, or interest on Designated Senior Debt of the Company or such
Subsidiary Guarantor, as applicable, occurs; or
(ii) any other default occurs and is continuing with respect
to Designated Senior Debt of the Company or such Subsidiary Guarantor,
as applicable, that permits, or with the giving of notice or passage of
time or both (unless cured or waived) would permit, holders of the
Designated Senior Debt as to which such default relates to accelerate
its maturity and the Trustee receives a notice of the default (a
"Payment Blockage Notice") from the Company, such Subsidiary or the
holders (or their Representative) of any Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section unless
and until 360 days shall have elapsed since the date of commencement of
the payment blockage period resulting from the immediately prior Payment
Blockage Notice. No
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nonpayment default in respect of any Designated Senior Debt that existed
or was continuing on the date of delivery of any Payment Blockage Notice
to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default shall have been cured or waived for
a period of no less than 90 days.
The Company and the Subsidiary Guarantors, if any, shall resume
payments on and distributions in respect of the Notes and the Subsidiary
Guarantees, if any, upon:
(1) in the case of a default referred to in Section 10.4(i)
hereof the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 10.4(ii)
hereof, the earliest of (1) the date on which such nonpayment default is
cured or waived or (2) 179 days after the date on which the applicable
Payment Blockage Notice is received unless (A) the maturity of any
Designated Senior Debt has been accelerated or (B) a Default or Event of
Default under Section 6.1(9) or (10) has occurred and is continuing,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.5. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.6. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment
or distribution of or in respect of any Obligations with respect to the Notes
or the Subsidiary Guarantees, if any, at a time when such payment or
distribution is prohibited by Section 10.3 or Section 10.4 hereof, such payment
or distribution shall be held by the Trustee (if the Trustee has actual
knowledge that such payment or distribution is prohibited by Section 10.3 or
10.4) or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Debt as their interests may appear
or their Representative under the indenture or other agreement (if any)
pursuant to which such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
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With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and, except as provided in
Section 10.12, neither the Trustee nor the Paying Agent shall be liable to any
such holders if the Trustee or Paying Agent shall pay over or distribute to or
on behalf of Holders of Notes or the Company, the Subsidiary Guarantors, if
any, or any other Person money or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article 10, except if such payment is made
as a result of the willful misconduct or gross negligence of the Trustee.
Section 10.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article.
Section 10.8. Subrogation.
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders of Notes shall be subrogated (equally and ratably with
all other Indebtedness pari passu with the Notes) to the rights of holders of
Senior Debt to receive distributions and payments applicable to Senior Debt to
the extent that distributions and payments otherwise payable to the Holders of
Notes have been applied to the payment of Senior Debt. A payment or
distribution made under this Article to holders of Senior Debt that otherwise
would have been made to Holders of Notes is not, as between the Company and
Holders of Notes, a payment by the Company on the Notes.
Section 10.9. Relative Rights.
This Article defines the relative rights of Holders of Notes and
the related Subsidiary Guarantees, if any, and holders of Senior Debt. Nothing
in this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and the
related Subsidiary Guarantees, if any, and creditors of the Company
other than their rights in relation to holders of Senior Debt; or
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(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Notes and the related
Subsidiary Guarantees, if any.
If the Company fails because of this Article to pay principal of
or interest on a Note on the due date, the failure is still a Default or Event
of Default.
Section 10.10. Subordination May Not Be Impaired by Company or
the Subsidiary Guarantors, If Any.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided in this Article Ten will at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or any Subsidiary Guarantor (if any) or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Company or
any Subsidiary Guarantor (if any) with the terms of this Indenture, regardless
of any knowledge thereof that any such holder of Senior Debt may have or
otherwise be charged with. The provisions of this Article Ten are intended to
be for the benefit of, and shall be enforceable directly by, the holders of
Senior Debt.
Section 10.11. Payment, Distribution or Notice to
Representative.
Whenever a payment or distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be made and the notice
given to their Representative, if any.
Upon any payment or distribution of assets or securities of the
Company or any Subsidiary Guarantor (if any) referred to in this Article 10,
the Trustee and the Holders of Notes and the related Subsidiary Guarantees, if
any, shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any payment or distribution
to the Trustee or to the Holders of Notes for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Indebtedness of the Company or any Subsidiary
Guarantor (if any), the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 10.
Section 10.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be
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charged with knowledge of the existence of any facts that would prohibit the
making of any payment or distribution by the Trustee, and the Trustee and the
Paying Agent may continue to make payments on the Notes and the Subsidiary
Guarantees, if any, unless the Trustee shall have received at its Corporate
Trust Office at least one Business Day prior to the date of such payment
written notice of facts that would cause the payment of any Obligations with
respect to the Notes or Subsidiary Guarantees, if any, to violate this Article,
which notice shall specifically refer to Section 10.3 or 10.4 hereof. Only the
Company or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
Section 10.13. Authorization to Effect Subordination.
Each Holder by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.9 hereof at least 30 days before the expiration of the time to file
such claim, each lender under the Designated Senior Debt is hereby authorized
to file an appropriate claim for and on behalf of the Holders of the Notes and
the related Subsidiary Guarantees, if any.
Section 10.14. Amendments.
No amendment may be made to the provisions of or the definitions
of any terms appearing in this Article 10, or to the provisions of Section 6.2
relating to the Designated Senior Debt, that adversely affects the rights of
any holder of Senior Debt then outstanding unless the holders of such Senior
Debt (or any group or Representative authorized to give a consent) consent to
such change.
Section 10.15. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 10.9 of
this Indenture, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt or
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any instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and each Subsidiary
Guarantor (if any) and any other Person.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control. If any provisions of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
Section 11.2. Notices.
Any notice or communication by the Company, the Subsidiary
Guarantors, if any, or the Trustee to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, to the others' address:
If to the Company or any Subsidiary Guarantor, if any:
Belco Oil & Gas Corp.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copies to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxx
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If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
Ref: Belco Oil & Gas Corp.
The Company or any Subsidiary Guarantor, if any, or the Trustee,
by notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if by telecopy; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company or any Subsidiary Guarantor, if any, mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.
Section 11.3. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Subsidiary Guarantors, if any, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
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Section 11.4. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor, if any, to the Trustee to take any action under this Indenture, the
Company or such Subsidiary Guarantor, if any, as the case may be, shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a
condition precedent) relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 11.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make
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reasonable rules and set reasonable requirements for its functions.
Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future
Holder of the same Note or the Holder of every Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof to the same extent as the
original Holder, in respect of anything done, suffered or omitted to be done by
the Trustee, any Paying Agent or the Company in reliance thereon, whether or
not notation of such action is made upon such Note.
Section 11.7. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company or any Subsidiary Guarantor, if any, as such, shall have any
liability for any obligations of the Company or any Subsidiary Guarantor under
the Notes, any Subsidiary Guarantee, if any, or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes, by accepting a Note, waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
Section 11.8. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES, IF
ANY.
Section 11.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or their respective Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture and the Subsidiary Guarantees, if any.
Section 11.10. Successors.
All agreements of the Company and each Subsidiary Guarantor, if
any, in this Indenture, the Notes and the Subsidiary Guarantees, if any, shall
bind its respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
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Section 11.11. Severability.
In case any provision in this Indenture, in the Notes or in any
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 11.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
106
SIGNATURES
Dated as of
September __, 1997
BELCO OIL & GAS CORP.
Attest: By:
----------------------------------
Name:
--------------------------------
Title:
------------------------------ -------------------------------
THE BANK OF NEW YORK,
as Trustee
Attest: By:
----------------------------------
Name:
--------------------------------
Title:
------------------------------ -------------------------------
107
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
SERIES A NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE
A-1
108
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN THE CASE OF THE FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
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BELCO OIL & GAS CORP.
8-7/8% Senior Subordinated Notes due 2007
No. 1 $150,000,000
CUSIP Number:
BELCO OIL & GAS CORP., a Nevada corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum of One Hundred Fifty
Million Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: September 23, 1997
BELCO OIL & GAS CORP.
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this is
one of the Notes referred to in the
within-mentioned Indenture:
By
-------------------------------------
Authorized Signatory
Dated:
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(Back of Note)
8-7/8% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Belco Oil & Gas Corp., a Nevada corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate of 8-7/8% per annum, which interest shall be payable in cash
semiannually in arrears on each March 15 and September 15, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"); provided that the first Interest Payment Date shall be March
15, 1998. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. Method of Payment. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this
Note as of the close of business on the March 1 or September 1 immediately
preceding such Interest Payment Date, even if this Note is cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. Principal,
premium, if any, and interest on this Note will be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, in the event the Notes do not remain in book-entry form, at the
option of the Company, payment of interest may be made by check mailed to the
Holder of this Note at its address set forth in the register of Holders of
Notes; provided that all payments with respect to the Global Notes and
Definitive Notes having an aggregate principal amount of $5.0 million or more
the Holders of which have given wire transfer instructions to the Company at
least 10 Business Days prior to the applicable payment date will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any
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Subsidiary Guarantor, if any, or any other of the Company's Subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of September 23, 1997 ("Indenture") between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured senior subordinated
obligations of the Company equal in an aggregate principal amount to
$150,000,000 and will mature on September 15, 2007.
The Notes are general unsecured senior subordinated obligations
of the Company limited to $150,000,000 aggregate principal amount (subject to
Section 2.7 of the Indenture). This Note is one of the Initial Notes referred
to in the Indenture. The Notes include the Initial Notes and any Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture and
the Registration Rights Agreement. The Initial Notes and the Exchange Notes
are treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the incurrence of Indebtedness by the Company
and its Restricted Subsidiaries, the payment of dividends and other
distributions on the Capital Stock of the Company and its Restricted
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases or redemptions
of Indebtedness, the sale or transfer of assets and Capital Stock of Restricted
Subsidiaries, the issuance or sale of Capital Stock of Restricted Subsidiaries,
the Investments of the Company and its Subsidiaries and transactions with
Affiliates. In addition, the Indenture limits the ability of the Company and
its Restricted Subsidiaries to restrict distributions and dividends from
Restricted Subsidiaries.
5. Optional Redemption.
(a) The Notes are not redeemable at the Company's option prior
to September 15, 2002. From and after September 15, 2002, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on September 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . 104.438%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 102.958%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 101.479%
2005 and thereafter . . . . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, at any time prior to September 15, 2000, the Company may, at its
option, on any one or more occasions, redeem up to 33-1/3% of the original
aggregate principal amount of Notes at a redemption price of 108.875% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date with all or a portion of the net proceeds of public sales
of common stock of the Company (the "Common Stock"); provided that at least 66
2/3% of the original aggregate principal amount of Notes remains outstanding
immediately after the occurrence of such redemption.
(c) Notwithstanding the provisions of clause (a) of this
Paragraph 5, upon the occurrence of a Change of Control at any time on or prior
to September 15, 2002, the Company may, at its option, redeem in whole but not
in part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, thereon to, the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date) provided that such redemption shall be made no more than
90 days after the occurrence of a Change of Control. The Company shall notify
the Trustee and, by mail, the Holders of the Notes of its decision to redeem
the Notes pursuant to this Paragraph 5(c) within 30 days of the occurrence of a
Change of Control.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Notes pursuant to paragraph 5(c), each Holder of Notes
shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, thereon to the date of purchase (the
"Change of Control Payment"). The right of the Holders of the Notes to require
the Company to repurchase such
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Notes upon a Change of Control may not be waived by the Trustee without the
approval of the Holders of the Notes required by Section 9.2 of the Indenture.
Within 30 days following any Change of Control, the Company will mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase the Notes pursuant to the
procedures required by the Indenture and described in such notice. The Change
of Control Payment shall be made on a business day not less than 30 days nor
more than 60 days after such notice is mailed. The Company and each Subsidiary
Guarantor, if any, will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Notes and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to, in the
case of the Notes, 100% of the principal amount thereof, plus accrued and
unpaid interest thereon to the date of purchase or, in the case of any Pari
Passu Indebtedness, 100% of the principal amount thereof (or with respect to
discount Pari Passu Indebtedness, the accreted value thereof) on the date of
purchase, in each case, in accordance with the procedures set forth in Section
3.9 of the Indenture or the agreements governing the Pari Passu Indebtedness,
as applicable. To the extent that the aggregate principal amount (or accreted
value, as the case may be) of Notes, and Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
sum of (i) the aggregate principal amount of Notes surrendered by Holders
thereof and (ii) the aggregate principal amount or accreted value, as the case
may be, of Pari Passu Indebtedness surrendered by holders or lenders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
the other Pari Passu Indebtedness to be purchased on a pro rata basis, based on
the aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to
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114
accrue on the aggregate principal amount of the Notes called for redemption.
9. Denominations, Transfer, Exchange. The Notes may be
issued initially in the form of one or more fully registered Global Notes. The
Notes may also be issued in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Note for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or the tender offer or exchange offer for, such
Notes), and any existing Default or Event of Default under, or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of
certificated Securities, to provide for the assumption of the Company's or any
Subsidiary Guarantor's, if any, obligations to Holders of the Notes in case of
a merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to add a
Subsidiary Guarantee under the Indenture.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Notes (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium, if
any, on the
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Notes (whether or not prohibited by the provisions of Article 10 of the
Indenture); (iii) failure by the Company or a Subsidiary Guarantor, if any, to
comply with the provisions of Article 5 of the Indenture; (iv) failure by the
Company for 30 consecutive days after notice from the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then outstanding to
comply with the provisions of Sections 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.15, 4.18 and 4.19 of the Indenture; (v) failure by the Company for 60
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding to comply with any
of its other agreements or covenants in, or provisions of, this Note or in the
Indenture; (vi) except as permitted by the Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or a Subsidiary
Guarantor or any Person acting on behalf of a Subsidiary Guarantor, shall deny
or disaffirm such Subsidiary Guarantor's obligations under its Subsidiary
Guarantee; (vii) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists
or shall be created hereafter, which default (a) is caused by a failure to pay
principal of such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there is then existing a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more; (viii) a final non-appealable
judgment or order or final non-appealable judgments or orders are rendered
against the Company or any Restricted Subsidiary that remain unpaid or
discharged for a period of 60 days and that require the payment in money,
either individually or in an aggregate amount, that is more than $10 million;
and (ix) certain events of bankruptcy or insolvency with respect to the Company
or any Restricted Subsidiary. If any Event of Default (other than an Event of
Default described in clause (ix) above) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, or any
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority
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in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest or
premium on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and the Company and each Subsidiary Guarantees, if any, is required, within
five Business days after becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
13. Subordination. The Notes are subordinated to Senior Debt
of the Company. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes may be paid. The Company agrees, and each Holder by
accepting a Note agrees, (a) that the Indebtedness evidenced by the Notes,
including, but not limited to, the payment of principal of, premium, if any,
and interest on the Notes, and any other payment Obligation of the Company in
respect of the Notes is subordinated in right of payment, and (b) the
Subsidiary Guarantees, if any, and any other payment Obligations in respect of
the Subsidiary Guarantees, are Subordinated in right of payment, to the extent
and in the manner provided in the Indenture, to the prior payment in full in
cash of all Senior Debt of the Company (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed) and authorizes the
Trustee to give effect and appoints the Trustee as attorney-in-fact for such
purpose.
14. Trustee Dealings with Company. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor
of the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest, as defined in Section 310(b)
of the TIA, it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue or resign.
15. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company or any Subsidiary
Guarantor, if any, as such, shall have any liability for any obligations of the
Company or any Subsidiary Guarantor under the Notes, any Subsidiary Guarantee,
if any, or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes, by
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accepting a Note, waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Belco Oil & Gas Corp.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Date: Your Signature:
-------------------- ---------------------------
Signature Guarantee:*
-------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or
Section 2.6(d)(i)(A) of the Indenture); or
2[ ] transferred to the Company; or
3[ ] transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
4[ ] transferred pursuant to an effective registration
statement under the Securities Act; or
------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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5[ ] transferred pursuant to and in compliance with Rule 144 or
Regulation S under the Securities Act of 1933; or
6[ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933), that has furnished to the Trustee
a signed letter containing certain representations and
agreements (the form of which letter appears as Exhibit C
to the Indenture); or
7[ ] transferred pursuant to another available exemption from
the registration requirements of the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than
the registered holder thereof; provided, however, that if box (5), (6) or (7)
is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
-------------------------------
Signature
Signature Guarantee:*
------------------------------------ -------------------------------
(Signature must be guaranteed) Signature
--------------------------------------------------------------------------------
----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.13
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
------------------- -----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:*
----------------------------
----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Note
Exchange this Global Note this Global Note decrease or increase Custodian
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EXHIBIT B
(Form of Face of Exchange Note)
SERIES B NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
X-0
000
XXXXX OIL & GAS CORP.
8-7/8% Senior Subordinated Notes due 2007
No. 1 $150,000,000
CUSIP Number:
BELCO OIL & GAS CORP., a Nevada corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum of One Hundred Fifty
Million Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated:
BELCO OIL & GAS CORP.
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this is
one of the Notes referred to in the
within-mentioned Indenture:
By
-------------------------------------
Authorized Signatory
Dated:
B-2
124
(Back of Note)
8-7/8% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Belco Oil & Gas Corp., a Nevada corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate of 8-7/8% per annum, which interest shall be payable in cash
semiannually in arrears on each March 15 and September 15, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"); provided that the first Interest Payment Date shall be March
15, 1998. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. Method of Payment. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this
Note as of the close of business on the March 1 or September 1 immediately
preceding such Interest Payment Date, even if this Note is cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. Principal,
premium, if any, and interest on this Note will be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, in the event the Notes do not remain in book-entry form, at the
option of the Company, payment of interest may be made by check mailed to the
Holder of this Note at its address set forth in the register of Holders of
Notes; provided that all payments with respect to the Global Notes and
Definitive Notes having an aggregate principal amount of $5.0 million or more
the Holders of which have given wire transfer instructions to the Company at
least 10 Business Days prior to the applicable payment date will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any
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Subsidiary Guarantor, if any, or any other of the Company's Subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of September 23, 1997 ("Indenture") between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured senior subordinated
obligations of the Company equal in an aggregate principal amount to
$150,000,000 and will mature on September 15, 2007.
The Notes are general unsecured senior subordinated obligations
of the Company limited to $150,000,000 million aggregate principal amount
(subject to Section 2.7 of the Indenture). This Note is one of the Initial
Notes referred to in the Indenture. The Notes include the Initial Notes and
any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on the incurrence of Indebtedness by
the Company and its Restricted Subsidiaries, the payment of dividends and other
distributions on the Capital Stock of the Company and its Restricted
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases or redemptions
of Indebtedness, the sale or transfer of assets and Capital Stock of Restricted
Subsidiaries, the issuance or sale of Capital Stock of Restricted Subsidiaries,
the Investments of the Company and its Subsidiaries and transactions with
Affiliates. In addition, the Indenture limits the ability of the Company and
its Restricted Subsidiaries to restrict distributions and dividends from
Restricted Subsidiaries.
5. Optional Redemption.
(a) The Notes are not redeemable at the Company's option prior
to September 15, 2002. From and after September 15, 2002, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on September 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.438%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.958%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.479%
2005 and thereafter . . . . . . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, at any time prior to September 15, 2000, the Company may, at its
option, on any one or more occasions, redeem up to 33-1/3% of the original
aggregate principal amount of Notes at a redemption price of 108.875% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date with all or a portion of the net proceeds of public sales
of common stock of the Company (the "Common Stock"); provided that at least 66
2/3% of the original aggregate principal amount of Notes remains outstanding
immediately after the occurrence of such redemption.
(c) Notwithstanding the provisions of clause (a) of this
Paragraph 5, upon the occurrence of a Change of Control at any time on or prior
to September 15, 2002, the Company may, at its option, redeem in whole but not
in part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, thereon to, the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date) provided that such redemption shall be made no more than
90 days after the occurrence of a Change of Control. The Company shall notify
the Trustee and, by mail, the Holders of the Notes of its decision to redeem
the Notes pursuant to this Paragraph 5(c) within 30 days of the occurrence of a
Change of Control.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Notes pursuant to paragraph 5(c), each Holder of Notes
shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, thereon to the date of purchase (the
"Change of Control Payment"). The right of the Holders of the Notes to require
the Company to repurchase such
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Notes upon a Change of Control may not be waived by the Trustee without the
approval of the Holders of the Notes required by Section 9.2 of the Indenture.
Within 30 days following any Change of Control, the Company will mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Notes pursuant to the procedures
required by the Indenture and described in such notice. The Change of Control
Payment shall be made on a business day not less than 30 days nor more than 60
days after such notice is mailed. The Company and each Subsidiary Guarantor,
if any will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes as a result of a Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Notes and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to, in the
case of the Notes, 100% of the principal amount thereof, plus accrued and
unpaid interest thereon to the date of purchase or, in the case of any Pari
Passu Indebtedness, 100% of the principal amount thereof (or with respect to
discount Pari Passu Indebtedness, the accreted value thereof) on the date of
purchase, in each case, in accordance with the procedures set forth in Section
3.9 of the Indenture or the agreements governing the Pari Passu Indebtedness,
as applicable. To the extent that the aggregate principal amount (or accreted
value, as the case may be) of Notes, and Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
sum of (i) the aggregate principal amount of Notes surrendered by Holders
thereof and (ii) the aggregate principal amount or accreted value, as the case
may be, of Pari Passu Indebtedness surrendered by holders or lenders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
the other Pari Passu Indebtedness to be purchased on a pro rata basis, based on
the aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to
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accrue on the aggregate principal amount of the Notes called for redemption.
9. Denominations, Transfer, Exchange. The Notes may be
issued initially in the form of one or more fully registered Global Notes. The
Notes may also be issued in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Note for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or the tender offer or exchange offer for, such
Notes), and any existing Default or Event of Default under, or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of
certificated Securities, to provide for the assumption of the Company's or any
Subsidiary Guarantor's, if any, obligations to Holders of the Notes in case of
a merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to add a
Subsidiary Guarantee under the Indenture.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Notes (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium, if
any, on the
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Notes (whether or not prohibited by the provisions of Article 10 of the
Indenture); (iii) failure by the Company or a Subsidiary Guarantor, if any, to
comply with the provisions of Article 5 of the Indenture; (iv) failure by the
Company for 30 consecutive days after notice from the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then outstanding to
comply with the provisions of Sections 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.15, 4.18 and 4.19 of the Indenture; (v) failure by the Company for 60
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding to comply with any
of its other agreements or covenants in, or provisions of, this Note or in the
Indenture; (vi) except as permitted by the Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or a Subsidiary
Guarantor or any Person acting on behalf of a Subsidiary Guarantor, shall deny
or disaffirm such Subsidiary Guarantor's obligations under its Subsidiary
Guarantee; (vii) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists
or shall be created hereafter, which default (a) is caused by a failure to pay
principal of such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there is then existing a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more; (viii) a final non-appealable
judgment or order or final non-appealable judgments or orders are rendered
against the Company or any Restricted Subsidiary that remain unpaid or
discharged for a period of 60 days and that require the payment in money,
either individually or in an aggregate amount, that is more than $10 million;
and (ix) certain events of bankruptcy or insolvency with respect to the Company
or any Restricted Subsidiary. If any Event of Default (other than an Event of
Default described in clause (ix) above) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, or any
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority
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in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest or
premium on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and the Company and each Subsidiary Guarantee, if any, is required, within five
Business days after becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
13. Subordination. The Notes are subordinated to Senior Debt
of the Company. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes may be paid. The Company agrees, and each Holder by
accepting a Note agrees, (a) that the Indebtedness evidenced by the Notes,
including, but not limited to, the payment of principal of, premium, if any,
and interest on the Notes, and any other payment Obligation of the Company in
respect of the Notes is subordinated in right of payment, and (b) the
Subsidiary Guarantees, if any, and any other payment Obligations in respect of
the Subsidiary Guarantees, as Subordinated in right of payment, to the extent
and in the manner provided in the Indenture, to the prior payment in full in
cash of all Senior Debt of the Company (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed) and authorizes the
Trustee to give effect and appoints the Trustee as attorney-in-fact for such
purpose.
14. Trustee Dealings with Company. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor
of the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest, as defined in Section 310(b)
of the TIA, it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue or resign.
15. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company or any Subsidiary
Guarantor, if any, as such, shall have any liability for any obligations of the
Company or any Subsidiary Guarantor under the Notes, any Subsidiary Guarantee,
if any, or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes, by
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accepting a Note, waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Belco Oil & Gas Corp.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Date: Your Signature:
--------------------- -----------------------------
Signature Guarantee:*
-----------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.13
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
----------------- ----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:*
----------------------------
----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Note
Exchange this Global Note this Global Note decrease or increase Custodian
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EXHIBIT C
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
Belco Oil & Gas Corp.
x/x Xxx Xxxx xx Xxx Xxxx, Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of New York, Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen
This certificate is delivered to request a transfer of
$__________ principal amount of the 8-7/8% Senior Subordinated Notes due 2007
(the "Notes") of Belco Oil & Gas Corp. (the "Company").
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:
-------------------------------------------------------
Address:
----------------------------------------------------
Taxpayer ID Number:
-----------------------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501 (a) (1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar to the Notes in the normal course of
our business. We and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
X-0
000
0. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or otherwise
transfer such Notes prior to the date which is two years after the later of the
date of original issue and the last date on which the Company or any affiliate
of the Company was the owner of such Notes (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Company, (b) pursuant to
a registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under
the Securities Act, to a Person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" (within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that
is purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000 or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to
be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) that is acquiring such Notes for investment purposes
and not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Termination Date of the Notes
pursuant to clause (d), (e) or (f) above to require the delivery of an opinion
of counsel, certifications and/or other information satisfactory to the Company
and the Trustee.
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137
TRANSFEREE:
-------------------------------
3. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
---------------------------
(Name of Purchaser)
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name:
Address:
Taxpayer ID Number:
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138
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSIDIARY GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indenture) dated as of
________________, between _____________________ (the "Subsidiary Guarantor"), a
subsidiary of Belco Oil & Gas Corp. (or its successor), a company incorporated
under the laws of the State of Nevada (the "Company"), and The Bank of New
York, a New York banking corporation, as trustee under the indenture referred
to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of September 23, 1997,
providing for the issuance of an aggregate principal amount at maturity of
$150,000,000 of 8-7/8% Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, Section 4.16 of the Indenture provides that, under certain
circumstances, the Company is required to cause the Subsidiary Guarantor to
execute and deliver to the Trustee a Subsidiary Guarantee on the terms and
conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, the
Subsidiary Guarantor and the Trustee are authorized to execute and deliver this
Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Subsidiary Guarantor and the Trustee mutually covenant and agree
for the equal and ratable benefit of the holders of the Notes as follows:
1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. INDENTURE PROVISION PURSUANT TO WHICH GUARANTEE IS GIVEN.
This Supplemental Indenture is being executed and delivered
pursuant to Sections 4.16 and 9.1 of the Indenture.
3. AGREEMENTS TO GUARANTEE.
The Subsidiary Guarantor hereby agrees as follows:
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139
(a) The Subsidiary Guarantor, jointly and severally with all
other Subsidiary Guarantors, if any, unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, regardless of the validity and enforceability of the
Indenture, the Notes and the obligations of the Company under the Indenture and
the Notes, that:
(i) the principal of, premium, if any, and interest on
the Notes shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal
of, premium, if any, and interest on the Notes, to the extent lawful, and all
other obligations of the Company to the Holders or the Trustee thereunder shall
be promptly paid in full, all in accordance with the terms thereof; and
(ii) in case of any extension of time for payment or
renewal of any Notes or any of such other obligations, that the same shall be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under this Supplemental Indenture and its
Subsidiary Guarantee shall be limited to such amount as will not, after giving
effect thereto, and to all other liabilities of the Subsidiary Guarantor,
result in such amount constituting a fraudulent transfer or conveyance.
4. SUBORDINATION.
The Subsidiary Guarantor agrees, and each Holder by accepting a
Note agrees, that (a) the obligations of the Subsidiary Guarantor under this
Subsidiary Guarantee are subordinated in right of payment to the prior payment
in full (when due) of all existing and future Guarantor Senior Indebtedness of
the Subsidiary Guarantor, including without limitation any guarantee by the
Subsidiary Guarantor of the Indebtedness under the New Credit Facility or of
any Senior Debt of the Company or of any Guarantor Senior Indebtedness of any
other Subsidiary Guarantor, to the extent and in the matter provided in Article
10 (including, without limitation, Section 10.12) of the Indenture (as if the
Subsidiary Guarantor were the Company for purposes of such Article 10 and all
defined terms used therein, and the Guarantor Senior Indebtedness of the
Guarantor were Senior Debt), and this Subsidiary Guarantee is made subject to
such provisions (which are hereby incorporated herein by reference), and (b)
such subordination is for the
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benefit of and enforceable by the holders of Guarantor Senior Indebtedness of
the Subsidiary Guarantor.
5. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, the Subsidiary Guarantor hereby agrees that a notation
of such Subsidiary Guarantee substantially in the form of Annex A hereto shall
be endorsed by an officer of such Subsidiary Guarantor on each Note
authenticated and delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, the Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth herein shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
(c) If an officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds that office at the
time the Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of a Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of
the Subsidiary Guarantee set forth in this Supplemental Indenture on behalf of
the Subsidiary Guarantor.
(e) The Subsidiary Guarantor hereby agrees that its
obligations hereunder shall be unconditional, regardless of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
(f) The Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenants that its Subsidiary Guarantee made pursuant to this Supplemental
Indenture will not be discharged except by complete performance of the
obligations contained in the Notes and the Indenture or pursuant to Section
6(b) of this Supplemental Indenture.
(g) If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Supplemental Indenture or under the
Subsidiary Guarantee made pursuant to this
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Supplemental Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then, and in every such case, subject to any determination in such
proceeding, the Subsidiary Guarantor, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Subsidiary Guarantor, the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
(h) The Subsidiary Guarantor hereby waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary Guarantor as a result of any payment by such Subsidiary
Guarantor under its Subsidiary Guarantee. The Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 of the Indenture for the purposes of
the Subsidiary Guarantee made pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of
such obligations as provided in such Article 6, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantor for the purpose of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture.
(i) The Subsidiary Guarantor shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor, if any, so long as
the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantee made pursuant to this Supplemental Indenture.
(j) The Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of the Indenture or this
Subsidiary Guarantee; and the Subsidiary Guarantor (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.
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6. SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
(a) Except as set forth in Articles 4 and 5 of the Indenture,
nothing contained in the Indenture, this Supplemental Indenture or in the Notes
shall prevent any consolidation or merger of the Subsidiary Guarantor with or
into the Company or any other Subsidiary Guarantor or shall prevent any
transfer, sale or conveyance of the property of the Subsidiary Guarantor as an
entirety or substantially as an entirety, to the Company or any other
Subsidiary Guarantor.
(b) Except as set forth in Article 5 of the Indenture, upon the
sale or disposition of all of the Capital Stock of the Subsidiary Guarantor by
the Company or the Subsidiary of the Company, or upon the consolidation or
merger of the Subsidiary Guarantor with or into any Person, or the sale of all
or substantially all of the assets of the Subsidiary Guarantor (in each case,
other than to an Affiliate of the Company), such Subsidiary Guarantor shall be
deemed automatically and unconditionally released and discharged from all
obligations under this Subsidiary Guarantee without any further action required
on the part of the Trustee or any Holder if no Default shall have occurred and
be continuing; provided, that in the event of an Asset Sale, the Net Proceeds
therefrom are treated in accordance with Section 4.10 of the Indenture. Except
with respect to transactions set forth in the preceding sentence, the Company
and the Subsidiary Guarantor covenant and agree that upon any such
consolidation, merger or transfer of assets, the performance of all covenants
and conditions of this Supplemental Indenture to be performed by such
Subsidiary Guarantor shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, by the corporation formed by such
consolidation, or into which the Subsidiary Guarantor shall have merged, or by
the corporation which shall have acquired such property. Upon receipt of an
Officer's Certificate of the Company or the Subsidiary Guarantor, as the case
may be, to the effect that the Company or such Subsidiary Guarantor has
complied with the first sentence of this Section 6(b), the Trustee shall
execute any documents reasonably requested by the Company or the Subsidiary
Guarantor, at the cost of the Company or such Subsidiary Guarantor, as the case
may be, in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Guarantee endorsed on the Notes and under the Indenture
and this Supplemental Indenture.
7. RELEASES UPON RELEASE OF GUARANTEE OF GUARANTEED INDEBTEDNESS.
Concurrently with the release or discharge of the Subsidiary
Guarantor's guarantee of the payment of [describe indebtedness the guarantee of
which gave rise to the delivery of
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this Supplemental Indenture] ("Guaranteed Debt") (other than a release or
discharge by or as a result of payment under such guarantee of Guaranteed
Indebtedness), the Subsidiary Guarantor shall be automatically and
unconditionally released and relieved of its obligations under this
Supplemental Indenture and its Subsidiary Guarantee made pursuant to Section 5
of this Supplemental Indenture. Upon delivery by the Company to the Trustee of
an Officer's Certificate to the effect that such release or discharge has
occurred, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Subsidiary Guarantor from its obligations under
this Supplemental Indenture and its Subsidiary Guarantee made pursuant hereto;
provided such documents shall not affect or impair the rights of the Trustee
and Paying Agent under Section 7.7 of the Indenture.
8. NEW YORK LAW TO GOVERN.
The substantive law of the State of New York shall govern and be
used to construe this Supplemental Indenture.
9. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
10. RECITALS, ETC.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
11. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall
not effect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
BELCO OIL & GAS CORP.
By:
-------------------------------
Name:
Title:
[SUBSIDIARY GUARANTOR]
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Name:
Title:
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ANNEX A TO SUPPLEMENTAL INDENTURE
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Each Subsidiary Guarantor (as defined in the Indenture) has jointly and
severally unconditionally guaranteed (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, whether at Stated
Maturity or an Interest Payment Date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue
principal and premium of, and interest, to the extent lawful, on the Notes and
(c) that in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, the same will be promptly paid in full when due
in accordance with the terms of the extension of renewal, whether at stated
maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to such amount as will not, after giving effect thereto, and to all
other liabilities of the Subsidiary Guarantor, result in such amount
constituting a fraudulent transfer or conveyance.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
Dated: ,
-------------------- -------
[SUBSIDIARY GUARANTOR]
By:
-------------------------------
Name:
Title: