EXHIBIT 4.5
XXXXXX PETROLEUM COMPANY
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
Trustee
----------------
INDENTURE
Dated as of November __, 1996
----------------
$15,000,000
___% Senior Subordinated Notes due 2001
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED AND
INDENTURE DATED AS OF NOVEMBER __, 1996
Trust Indenture Act Indenture
Section Section
Section 310 (a)(1)........................................608
(a)(2)........................................608
(a)(3)........................................Inapplicable
(a)(4)........................................Inapplicable
(b)...........................................605, 609
Section 311...............................................605
Section 312 (a)...........................................701, 702
(b)...........................................702
(c)...........................................702
Section 313 (a)...........................................703
(b)(1)........................................Inapplicable
(b)(2)........................................703
(c)...........................................703
(d)...........................................703
Section 314 (a)...........................................704, 1012
(b)...........................................Inapplicable
(c)(1)........................................102
(c)(2)........................................102
(c)(3)........................................Inapplicable
(d)...........................................Inapplicable
(e)...........................................102
Section 315 (a)...........................................601, 603
(b)...........................................602
(c)...........................................601
(d)...........................................601, 603
(e)...........................................603, 607
Section 316 (a)(1)(A).....................................512
(a)(1)(B).....................................513
(a)(2)........................................Inapplicable
(b)...........................................508
(c)...........................................104
Section 317 (a)(1)........................................503
(a)(2)........................................504
(b)...........................................1003
Section 318 (a)...........................................108
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........1
SECTION 101. DEFINITIONS......................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................10
SECTION 104. ACTS OF HOLDERS.................................................10
SECTION 105. NOTICES, ETC, TO TRUSTEE AND COMPANY............................11
SECTION 106. NOTICE TO HOLDERS OF NOTES; WAIVER..............................11
SECTION 107. LANGUAGE OF NOTICES.............................................12
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT...............................12
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................12
SECTION 110. SUCCESSORS AND ASSIGNS..........................................12
SECTION 111. SEVERABILITY CLAUSE.............................................12
SECTION 112. BENEFITS OF INDENTURE...........................................12
SECTION 113. GOVERNING LAW...................................................12
SECTION 114. LEGAL HOLIDAYS..................................................12
SECTION 115. SCHEDULES.......................................................12
SECTION 116. COUNTERPARTS....................................................12
SECTION 117. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS................13
SECTION 118. NO ADVERSE INTERPRETATIONS OF OTHER AGREEMENTS..................13
ARTICLE TWO FORM OF NOTES....................................................13
SECTION 201. FORMS GENERALLY.................................................13
SECTION 202. FORM OF FACE OF NOTE............................................13
SECTION 203. FORM OF REVERSE OF NOTE........................................15
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................17
ARTICLE THREE THE NOTES......................................................17
SECTION 301. TITLE AND TERMS.................................................17
SECTION 302. CURRENCY; DENOMINATIONS.........................................17
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................17
SECTION 304. TEMPORARY NOTES.................................................18
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.............................18
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.....................19
SECTION 307. PAYMENT OF INTEREST, RIGHTS TO INTEREST PRESERVED...............19
SECTION 308. PERSONS DEEMED OWNERS...........................................20
SECTION 309. CANCELLATION....................................................20
SECTION 310. AUTHENTICATION AND DELIVERY OF ORIGINAL ISSUE...................21
SECTION 311. COMPUTATION OF INTEREST.........................................21
SECTION 312. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE...........................21
ARTICLE FOUR SATISFACTION AND DISCHARGE......................................22
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.........................22
SECTION 402. APPLICATION OF TRUST MONEY......................................22
ARTICLE FIVE REMEDIES........................................................23
SECTION 501. EVENTS OF DEFAULT...............................................23
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............24
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE......................................................25
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................25
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES..........26
SECTION 506. APPLICATION OF MONEY COLLECTED..................................26
SECTION 507. LIMITATION ON SUITS.............................................26
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
PREMIUM AND INTEREST............................................26
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..............................26
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..................................27
SECTION 511. DELAY OR OMISSION NOT WAIVER....................................27
SECTION 512. CONTROL BY HOLDERS..............................................27
SECTION 513. WAIVER OF PAST DEFAULTS.........................................27
SECTION 514. UNDERTAKING FOR COSTS...........................................27
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.........................28
ARTICLE SIX THE TRUSTEE......................................................28
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.............................28
SECTION 602. NOTICE OF DEFAULTS..............................................29
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SECTION 603. CERTAIN RIGHTS OF TRUSTEE.......................................29
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES...............29
SECTION 605. MAY HOLD NOTES..................................................30
SECTION 606. MONEY HELD IN TRUST.............................................30
SECTION 607. COMPENSATION AND REIMBURSEMENT..................................30
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................30
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............31
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................32
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....32
SECTION 612. APPOINTMENT OF AUTHENTICATION AGENT.............................32
SECTION 613. CONFLICTING INTERESTS...........................................33
SECTION 614. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............33
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............33
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......33
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........34
SECTION 703. REPORTS BY TRUSTEE..............................................34
SECTION 704. REPORTS BY COMPANY..............................................34
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES................................35
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS............35
SECTION 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY........................35
ARTICLE NINE SUPPLEMENTAL INDENTURES.........................................36
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............36
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................36
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................37
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................37
SECTION 905. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES...................37
SECTION 906. EFFECT ON SENIOR INDEBTEDNESS...................................37
SECTION 907. RECORD DATE.....................................................37
ARTICLE TEN COVENANTS........................................................38
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST..............................38
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................38
SECTION 1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST....................38
SECTION 1004. CORPORATE EXISTENCE............................................39
SECTION 1005. MAINTENANCE OF PROPERTIES......................................39
SECTION 1006. RESTRICTIONS ON DIVIDENDS, REDEMPTION AND OTHER PAYMENTS.......39
SECTION 1007. LIMITATIONS ON INDEBTEDNESS FOR MONEY BORROWED.................40
SECTION 1008. LIMITATION LIENS...............................................40
SECTION 1009. INSURANCE......................................................40
SECTION 1010. PAYMENT OF TAXES AND OTHER CLAIMS..............................41
SECTION 1011. STATEMENT BY OFFICERS AS TO DEFAULT............................41
SECTION 1012. WAIVER OF CERTAIN COVENANTS....................................41
SECTION 1013. LIMITATION ON RANKING OF FUTURE INDEBTEDNESS...................41
SECTION 1014. LIMITATIONS ON RESTRICTING SUBSIDIARY DIVIDENDS................41
SECTION 1015. LIMITATION ON TRANSACTIONS WITH AFFILIATES.....................42
ARTICLE ELEVEN REDEMPTION OF NOTES...........................................42
SECTION 1101. RIGHT OF REDEMPTION............................................42
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................42
SECTION 1103. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED...................42
SECTION 1104. NOTICE OF REDEMPTION...........................................43
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................43
SECTION 1106. NOTES PAYABLE ON REDEMPTION DATE...............................43
SECTION 1107. NOTES REDEEMED IN PART.........................................44
SECTION 1108. PURCHASE OF NOTES..............................................44
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE............................44
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE...44
SECTION 1202. DEFEASANCE AND DISCHARGE.......................................44
SECTION 1203. COVENANT DEFEASANCE............................................45
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................45
SECTION 1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS..........................46
SECTION 1206. REINSTATEMENT..................................................46
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ARTICLE THIRTEEN SUBORDINATION OF NOTES......................................46
SECTION 1301. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.......................46
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.................47
SECTION 1303. SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT......47
SECTION 1304 . PAYMENT PERMITTED IF NO DEFAULT...............................48
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS........48
SECTION 1306 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.....................48
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION............................48
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISION...........................49
SECTION 1309. NOTICE TO TRUSTEE..............................................49
SECTION 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT BANK.....................................................50
SECTION 1311. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS:
PRESERVATION OF TRUSTEE'S RIGHTS..............................50
SECTION 1312. ARTICLE APPLICABLE TO PAYING AGENTS............................50
SECTION 1313. NO SUSPENSION OF REMEDIES......................................50
SECTION 1314. TRUST MONEY NOT SUBORDINATED...................................50
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THIS INDENTURE, dated as of November __, 1996 (the "Indenture"), is
between XXXXXX PETROLEUM COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
having executive offices located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx
00000 and AMERICAN STOCK TRANSFER & TRUST COMPANY, a __________________
corporation duly organized and existing under the laws of United States
(hereinafter called the "Trustee"), having its principal corporate trust office
at
-----------------------------------.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its __% Senior Subordinated Notes due
2001 (hereinafter called the "Notes"), to be issued in such amount and to have
such provisions as are hereinafter set forth. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders from time to time
of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
Except as otherwise expressly provided in this Indenture or unless the
context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act (as hereinafter defined), either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the phrase "A
or B" means "A or B or both", not "either A or B but not both");
(6) the masculine gender includes the feminine and the neuter; and
(7) references to agreements and other instruments include subsequent
amendments and waivers but only to the extent not prohibited by this Indenture.
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"ACQUIRED INDEBTEDNESS" means Indebtedness for Money Borrowed of a
Person existing at the time such Person becomes a Restricted Subsidiary or
assumed in connection with the acquisition by the Company or a Restricted
Subsidiary of assets from such Person, and not incurred in connection with, or
in anticipation of, such Person becoming a Restricted Subsidiary or such
acquisition. Acquired Indebtedness shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Restricted Subsidiary.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"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 the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGENT MEMBERS" has the meaning specified in Section 312.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 612 to act on behalf of the Trustee to authenticate Notes.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"AVERAGE LIFE" means, with respect to any Indebtedness for Money
Borrowed, as at any date of determination, the quotient obtained by dividing (a)
the sum of the products of (i) the number of years (and any portion thereof)
from the date of determination to the date or dates of each successive scheduled
principal payment (including, without limitation, any sinking fund or mandatory
redemption payment requirements) of such Indebtedness for Money Borrowed
multiplied by (ii) the amount of each such principal payment by (b) the sum of
all such principal payments.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", with respect to any Place of Payment or other location,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a Legal
Holiday in such Place of Payment or other location.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal property which obligations are
required to be classified and accounted for as capital lease obligations on a
balance sheet of such Person under GAAP and, for purposes of this Indenture, the
amount of such obligations at any date shall be the capitalized amount thereof
at such date, determined in accordance with GAAP.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, or by another officer
of the Company duly authorized to sign by a Board Resolution, and delivered to
the Trustee.
2
"CONSOLIDATED" when used in conjunction with any other defined term
means the aggregate amount of the items included within the defined term of the
Company and its Restricted Subsidiaries on a Consolidated basis, eliminating
inter-company items.
"CONSOLIDATED EBITDA" means, for any period, determined in accordance
with GAAP on a Consolidated basis for the Company and its Restricted
Subsidiaries, the sum of Consolidated Net Income, plus depreciation, depletion,
amortization and other non-cash charges, income tax expense, and interest
expense for such period, each as deducted in determining such Consolidated Net
Income.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense for such period which is required to be shown as such on the financial
statements of the Company and its Restricted Subsidiaries, on a Consolidated
basis, prepared in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the amount of
Consolidated net income (loss) of the Company and its Restricted Subsidiaries
for such period, determined in accordance with GAAP; PROVIDED, HOWEVER, that
there shall be included in Consolidated Net Income any net extraordinary gains
or losses for such period (less all fees and expenses related thereto); and,
PROVIDED, FURTHER, that there shall not be included in Consolidated Net Income
(1) any net income (loss) of a Restricted Subsidiary for any portion of such
period during which it was not a Consolidated Subsidiary, (2) any net income
(loss) of businesses, properties or assets acquired or disposed of (by way of
merger, consolidation, purchase, sale or otherwise) by the Company or any
Restricted Subsidiary for any portion of such period prior to the acquisition
thereof or subsequent to the disposition thereof, or (3) any net income for such
period resulting from transfers of assets received by the Company or any
Restricted Subsidiary from an Unrestricted Subsidiary.
"CONSOLIDATED SUBSIDIARY" means a Restricted Subsidiary the financial
statements of which are Consolidated with the financial statements of the
Company.
"CONVERTIBLE DEBENTURES" means the Company's 8.5% Convertible
Subordinated Debentures due 2010 issued in exchange for the Company's Series A
Preferred Stock.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at ______________________.
"CORPORATION" includes corporations, associations, companies, joint
stock companies, limited liability companies or business trusts.
"CREDIT FACILITY" means that certain Amended and Restated Credit
Agreement, dated as of October 31, 1996, among the Company, Xxxxxx Petroleum
Operating Company, a Delaware corporation and wholly owned Subsidiary of the
Company ("Operating"), Xxxxxx Offshore Production, Inc., a Mississippi
corporation and wholly owned Subsidiary of Operating, the several banks and
other financial institutions from time to time parties thereto (the "Banks"),
and The Chase Manhattan Bank, as agent for the Banks, as the same may be
amended, modified, supplemented, extended, restated, replaced, renewed or
refinanced from time to time.
"DEFAULT" means any event that is or with the passage of time or giving
notice or both would be an Event of Default.
"DEFAULT NOTICE" has the meaning specified in Section 1301.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITORY" means The Depository Trust Company, its nominees and their
respective successors.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"EXCLUSIVE POWER" has the meaning specified in Section 1301.
3
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board in effect on the date
of the Indenture.
"GLOBAL NOTE" has the meaning specified in Section 201.
"GOVERNMENT OBLIGATIONS" means direct obligations of the United States
of America, or any Person controlled or supervised by and acting as an agency or
instrumentality of such government, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by such government and which are not callable or redeemable at the option of the
issuer or issuers thereof, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such custodian for the
account of the holder of a 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 Obligation or the specific payment of
interest on or principal of or other amount with respect to the Government
Obligation evidenced by such depository receipt.
"HOLDER", when used with respect to the Notes, means the Person in whose
name such Note is registered in the Note Register.
"INDEBTEDNESS FOR MONEY BORROWED" means any of the following obligations
of the Company or any Restricted Subsidiary: (1) any obligations, contingent or
otherwise, for borrowed money or for the deferred purchase price of property,
assets, securities or services (including, without limitation, any interest
accruing subsequent to an event of default), (2) all obligations (including the
Notes) evidenced by bonds, notes, debentures or other similar instruments, (3)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), except any such
obligation that constitutes a trade payable and an accrued liability arising in
the ordinary course of business, if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet prepared in
accordance with GAAP, (4) all Capitalized Lease Obligations, (5) liabilities of
the Company actually due and payable under bankers acceptances and letters of
credit, (6) all indebtedness of the type referred to in clause (1), (2), (3),
(4) or (5) above secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or
security interest in property of the Company or any Restricted Subsidiary
(including, without limitation, accounts and contract rights), even though the
Company or any Restricted Subsidiary has not assumed or become liable for the
payment of such indebtedness, and (7) any guarantee or endorsement (other than
for collection or deposit in the ordinary course of business) or discount with
recourse of, or other agreement, contingent or otherwise, to purchase,
repurchase, or otherwise acquire, to supply, or advance funds or become liable
with respect to, any indebtedness or any obligation of the type referred to in
any of the foregoing clauses (1) through (6), regardless of whether such
obligation would appear on a balance sheet; PROVIDED, HOWEVER, that Indebtedness
for Money Borrowed shall not include (i) Production Payments and Reserve Sales,
(ii) any liability for gas balancing incurred in the ordinary course of
business, (iii) accounts payable or other obligations of the Company or a
Restricted Subsidiary in the ordinary course of business in connection with the
obtaining of goods or services, and (iv) any liability under any and all (A)
employment or consulting agreements or employee benefit plans or arrangements
and (B) futures contracts, forward contracts, swap, cap or collar contracts,
option contracts, or other similar derivative agreements.
"INDENTURE" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"INDEPENDENT PUBLIC ACCOUNTANTS" means a nationally recognized firm of
accountants that, with respect to the Company, are Independent Public
Accountants within the meaning of the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder, who may be
the Independent Public Accountants regularly retained by the Company or who may
be other Independent Public Accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to the Indenture or certificates required to be provided
hereunder.
"INITIAL INTEREST ACCRUAL DATE" as to any Note means the date from which
interest shall begin to accrue in connection with the original issuance of such
Note, which shall be the date as of which such Note originally issued by the
Company to the initial purchaser thereof shall be dated, which shall be the date
upon which it was originally sold to such initial purchaser as designated by the
Company Order requesting authentication and delivery thereof.
4
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to any
Person, (a) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith, relative to such Person or its creditors, as such, or its assets or
(b) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
"INTEREST COVERAGE RATIO" means, for any date of determination, the
ratio of (1) Consolidated EBITDA for the immediately preceding four fiscal
quarters of the Company to (2) Consolidated Interest Expense for such
immediately preceding four fiscal quarters.
"INTEREST PAYMENT DATE" when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"ISSUE DATE" when used with respect to any Note, means the date on which
such Note is originally issued in accordance with the terms of this Indenture.
"LEGAL HOLIDAY" with respect to any Place of Payment or other location,
means a Saturday, a Sunday or a day on which banking institutions or trust
companies in such Place of Payment or other location are not authorized or
obligated to be open.
"LIEN" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or xxxxx x Xxxx or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing) upon or with respect to any property of any kind. A Person shall be
deemed to own subject to a Lien any property which such Person has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"MATERIAL SUBSIDIARY" means any Restricted Subsidiary whose assets or
revenues comprise at least five percent (5%) of the assets or revenues of the
Company and the Restricted Subsidiaries on a Consolidated basis as of the end
of, or for the, Company's most recently completed fiscal quarter, as determined
from time to time.
"MATURITY" when used with respect to any Note, means the date on which
the principal of such Note becomes due and payable as provided in this
Indenture, whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, and includes any Redemption Date.
"MONEY", with respect to any payment, deposit or other transfer
pursuant to or contemplated by the terms hereof, means United States dollars or
other equivalent unit of legal tender for payment of public or private debts in
the United States of America.
"NON-PAYMENT EVENT OF DEFAULT" means any event (other than a Payment
Event of Default), the occurrence of which (with or without notice or the
passage of time) entitles one or more Persons to accelerate the maturity of any
Specified Senior Indebtedness.
"NOTE" or "NOTES" means any note or notes, as the case may be,
authenticated and delivered under this Indenture.
"NOTE REGISTER" And "NOTE REGISTRAR" have the respective meanings
specified in Section 305.
"OFFICE OR AGENCY" means an office or agency of the Company maintained
or designated in a Place of Payment for the Notes pursuant to Section 1002 or
any other office or agency of the Company maintained or designated for, the
payment or surrender of the Notes pursuant to Section 1002 or, to the extent
designated or required by Section 1002 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and is delivered to the
Trustee.
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"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee.
"OUTSTANDING", when used with respect to any Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(1) any Note theretofore canceled by the Trustee or the Note
Registrar or delivered to the Trustee or the Note Registrar for
cancellation;
(2) any Note or portion thereof for whose payment at the Maturity
thereof Money in the necessary amount has been theretofore
deposited pursuant hereto with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of the Notes, provided that, if the Notes
are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) any Note with respect to which the Company has effected
defeasance pursuant to Clauses (1)(b) and (3) of Section 401
hereof; and
(4) any Note which has been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof
satisfactory to it that such Note is held by a bona fide
purchaser in whose hands such Note is a valid obligation of the
Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making any
such determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which shall have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (a) the pledgee's right so to act with respect to
such Notes and (b) that the pledgee is not the Company or any other obligor upon
the Notes or any Affiliate of the Company or such other obligor.
"PARI PASSU INDEBTEDNESS" means any Indebtedness for Money Borrowed of
the Company that is pari passu in right of payment to the Notes.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or interest on any Note on behalf of the Company.
"PAYMENT BLOCKAGE NOTICE" has the meaning specified in Section 1303.
"PAYMENT BLOCKAGE PERIOD" has the meaning specified in Section 1303.
"PAYMENT EVENT OF DEFAULT" means any default in the payment or required
prepayment of principal of or interest on any Specified Senior Indebtedness when
due (whether at final maturity, upon scheduled installment, upon acceleration or
otherwise).
"PERMITTED INDEBTEDNESS" means any of the following:
(i) Indebtedness for Money Borrowed outstanding on the date of this
Indenture (and not repaid or defeased with the proceeds of the
offering of the Notes);
(ii) Indebtedness for Money Borrowed of the Company to a Restricted
Subsidiary and Indebtedness for Money Borrowed of a Restricted
Subsidiary to the Company or a Restricted Subsidiary; PROVIDED,
HOWEVER, that upon any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any subsequent transfer of any such Indebtedness for Money
Borrowed (except to the Company or a Restricted Subsidiary),
such Indebtedness for Money Borrowed shall be deemed, in each
case, to be incurred and shall be treated as an incurrence for
purposes of Section "Payment Event of Default" means any default
in the payment or required prepayment of principal of or
interest on any Specified Senior Indebtedness when due (whether
at
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final maturity, upon scheduled installment, upon acceleration or
otherwise).1007 at the time the Restricted Subsidiary in
question ceased to be a Restricted Subsidiary;
(iii) any guarantee of Senior Indebtedness incurred in compliance with
Section 1007 by a Restricted Subsidiary or the Company; and
(iv) any renewals, substitutions, refinancings or replacements (each,
for purposes of this clause, a "refinancing") by the Company or
a Restricted Subsidiary of any Indebtedness for Money Borrowed
incurred pursuant to clause (i) of this definition, including
any successive refinancings by the Company or such Restricted
Subsidiary, so long as (A) any such new Indebtedness for Money
Borrowed shall be in a principal amount that does not exceed the
principal amount (or, if such Indebtedness for Money Borrowed
being refinanced provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant
to the terms of the Indebtedness for Money Borrowed refinanced
or the amount of any premium reasonably determined by the
Company or such Restricted Subsidiary as necessary to accomplish
such refinancing, plus the amount of expenses of the Company or
such Restricted Subsidiary incurred in connection with such
refinancing, and (B) in the case of any refinancing of
Indebtedness for Money Borrowed of the Company that is not
Senior Indebtedness, such new Indebtedness for Money Borrowed is
either PARI PASSU with the Notes or subordinated to the Notes at
least to the same extent as the Indebtedness being refinanced
and (C) such new Indebtedness for Money Borrowed has an Average
Life equal to or longer than the Average Life of the
Indebtedness for Money Borrowed being refinanced and a final
Stated Maturity equal to or later than the final Stated Maturity
of the Indebtedness for Money Borrowed being refinanced.
"PERMITTED JUNIOR SECURITIES" means any equity securities or
subordinated debt securities of the Company or any successor obligor with
respect to the Senior Indebtedness provided for by a plan of reorganization or
readjustment that, in the case of any such subordinated debt securities, are
subordinated in right of payment to all Senior Indebtedness that may at the time
be outstanding to substantially the same degree as, or to a greater extent than,
the Notes are so subordinated as provided in this Indenture.
"PERMITTED LIENS" means any of the following types of Liens:
(a) Liens existing as of the date the Notes are first issued
(except to the extent such Liens secure any Pari Passu Indebtedness or
Subordinate Indebtedness that is repaid or defeased with proceeds of the
offering of the Notes), and any renewal, extension or refinancing of any
such Lien provided that thereafter such Lien extends only to the
properties that were subject to such Lien prior to the renewal,
extension or refinancing thereof;
(b) Liens securing the Notes; and
(c) Liens in favor of the Company.
"PERSON" means any individual, Corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PHYSICAL NOTES" has the meaning specified in Section 201.
"PLACE OF PAYMENT" has the meaning set forth in Section 301.
"PREDECESSOR NOTE" of a Note means every previous Note evidencing all or
a portion of the same debt as that evidenced by such particular Note; and, for
the purposes of this definition, any Note authenticated and delivered under
Section 306 in exchange for or in lieu of a lost, destroyed, mutilated or stolen
Note shall be deemed to evidence the same debt as the lost, destroyed, mutilated
or stolen Note.
"PRODUCTION PAYMENTS AND RESERVE SALES" means the grant or transfer to
any Person of a royalty, overriding royalty, net profits interest, production
payment (whether volumetric or dollar denominated), master limited partnership
interest or other interest in oil and gas properties, reserves the right to
receive all or a portion of the production or the proceeds from the sale of
production attributable to such properties where the holder of such interest has
recourse solely to such production or proceeds of production, subject to the
obligation of the grantor or
7
transferor to operate and maintain, or cause the subject interests to be
operated and maintained, in a reasonably prudent manner or other customary
standard or subject to the obligation of the grantor or transferor to indemnify
for environmental matters.
"PROPERTY" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, capital stock in any
other Person.
"REDEMPTION DATE", with respect to any Note or portion thereof to be
redeemed, means the date fixed for such redemption pursuant to Article Eleven of
this Indenture.
"REDEMPTION PRICE", with respect to any Note or portion thereof to be
redeemed, means the price at which it is to be redeemed pursuant to Article
Eleven of this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Note on any
Interest Payment Date therefor means the date, if any, specified in or pursuant
to this Indenture as the "Regular Record Date".
"RESPONSIBLE OFFICER" means any officer of the Trustee in its Corporate
Trust Department and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"RESTRICTED PAYMENT" has the meaning specified in Section 1006.
"RESTRICTED SUBSIDIARY" means any Subsidiary, whether existing on or
after the date of this Indenture, unless such Subsidiary is an Unrestricted
Subsidiary or is designated as an Unrestricted Subsidiary pursuant to the terms
of this Indenture.
"SENIOR EVENT OF DEFAULT" has the meaning specified in Section 1301.
"SENIOR INDEBTEDNESS" means the principal amount of, and interest on and
all other amounts due on or in connection with, (1) any Indebtedness for Money
Borrowed of the Company, whether now outstanding or hereafter created, incurred,
assumed or guaranteed, unless in the instrument creating or evidencing such
Indebtedness for Money Borrowed or pursuant to which such Indebtedness for Money
Borrowed is outstanding it is provided that such indebtedness is subordinate in
right of payment or in rights upon liquidation to any other Indebtedness for
Money Borrowed of the Company and (2) all renewals, extensions and refundings of
any such indebtedness.
"SERIES A PREFERRED STOCK" means the Company's $2.125 Convertible
Exchangeable Preferred Stock, Series A.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on any
Note means a date fixed by the Trustee pursuant to Section 307.
"SPECIFIED SENIOR INDEBTEDNESS" means (a) all Senior Indebtedness of the
Company in respect of the Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings, or replacements
(each, for purposes of this definition, a "refinancing") thereof by the Company,
including any successive refinancings thereof by the Company and (b) any other
Senior Indebtedness and any refinancings thereof by the Company having a
principal amount of at least $5 million as of the date of determination and
provided that the agreements, indentures or other instruments evidencing such
Senior Indebtedness or pursuant to which such Senior Indebtedness was issued
specifically designates such Senior Indebtedness as "Specified Senior
Indebtedness" for purposes of the Indenture. For purposes of this definition, a
refinancing of any Specified Senior Indebtedness shall be treated as a Specified
Senior Indebtedness only if the Senior Indebtedness issued in such refinancing
ranks or would rank PARI PASSU with the Specified Senior Indebtedness refinanced
and only if the Senior Indebtedness issued in such refinancing is permitted by
Section 1007."
"STATED MATURITY" with respect to any Note or any installment of
principal thereof or interest thereon means the date established by this
Indenture as the fixed date on which the principal of such Note or such
installment of principal or interest is due and payable, and, when used with
respect to any other Indebtedness for Money Borrowed or any installment of
interest thereon, means the date specified in the instrument evidencing or
governing such Indebtedness for Money Borrowed as the fixed date on which the
principal of such Indebtedness for Money Borrowed or such installment of
interest is due and payable.
8
"SUBORDINATED INDEBTEDNESS" means Indebtedness for Money Borrowed of the
Company which is expressly subordinated in right of payment to the Notes,
including, without limitation, the Convertible Debentures.
"SUBSIDIARY" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or indirectly
more than 50% of the shares of Voting Stock;
"TRANSACTION" has the meaning specified in Section 1015.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of
1939, as in force at the date as of which this instrument was executed;
PROVIDED, HOWEVER, that in the event the United States Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the United States Trust Indenture Act of 1939 as
so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
each Person who is then a Trustee hereunder.
"UNITED STATES", except as otherwise provided herein, means the United
States of America (including the states thereof and the District of Columbia),
its territories and possessions and other areas subject to its jurisdiction.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the time of
determination will be designated an Unrestricted Subsidiary by the Board of
Directors as provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary as an
Unrestricted Subsidiary so long as neither the Company nor any Restricted
Subsidiary is directly or indirectly liable pursuant to the terms of any
Indebtedness for Money Borrowed of such Subsidiary or has any assets or
properties which are subject to any Lien securing any Indebtedness for Money
Borrowed of such Subsidiary. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing a Board Resolution with the Trustee
giving effect to such designation. The Board of Directors may designate any
Unrestricted Subsidiary as a Restricted Subsidiary if, immediately after giving
effect to such designation, (i) no Event of Default shall have occurred and be
continuing and (ii) the Company could occur $1.00 of additional Indebtedness for
Money Borrowed (other than Permitted Indebtedness) under Section 1007.
"VICE PRESIDENT", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"VOTING STOCK" means stock, interests, participations, rights in or
other equivalents in the equity interests (however designated) with respect to a
Corporation having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
Corporation; provided that, for the purposes hereof, stock which carries only
the right to vote conditionally on the happening of an event shall not be
considered Voting Stock whether or not such event shall have happened.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
9
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate of counsel or Opinion of Counsel or
representation of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Note, they may, but need not, be
Consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a Note,
shall be sufficient for any purpose of this Indenture and (subject to Section
315 of the Trust Indenture Act) conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a Global Note, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Global Note may provide its proxy or proxies to the beneficial
owners of interests in any such Global Note through such Depository's standing
instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any permanent Global Note held
by a Depository entitled under the procedures of such Depository to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in or
pursuant to this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing
10
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(3) The ownership, principal amount and serial numbers of Notes held by
any Person, and the date of the commencement and the date of the termination of
holding the same, shall be proved by the Note Register.
(4) If the Company shall solicit from the Holders of any Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may at its option (but is not obligated to), by Board Resolution,
fix in advance a record date for the determination of Holders of Notes entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Notes of record at the
close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders of
Notes on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(5) 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 and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Note Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 105. NOTICES, ETC, TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing and
delivered in person or mailed by certified or registered mail (return receipt
requested) to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
delivered in person or mailed by certified or registered mail (return receipt
requested), to the Company addressed to the attention of its Chief Financial
Officer at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF NOTES; WAIVER
Except as otherwise expressly provided in this Indenture, where this
Indenture provides for notice to Holders of Notes of any event, such notice
shall be sufficiently given to Holders of Notes if in writing and mailed, first-
class postage prepaid, to each Holder of a Note affected by such event, at such
Holder's address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
In any case where notice to Holders of Notes is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Note shall affect the sufficiency of such notice with
respect to other Holders of Notes. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided. In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Notes shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
11
SECTION 107. LANGUAGE OF NOTICES
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with any duties under any required provision of
the Trust Indenture Act imposed hereon by Section 318(d) thereof, such
required provision shall control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 111. SEVERABILITY CLAUSE
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, either wholly or partially, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and such provisions shall be given effect to the
fullest extent permitted by law.
SECTION 112. BENEFITS OF INDENTURE
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Note Registrar, any
Paying Agent, any Authenticating Agent and their respective successors
hereunder, the Holders of Notes and the holders of Senior Indebtedness, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of Texas applicable to agreements made or
instruments entered into and, in each case, performed in said state, without
regard to principles of conflict of laws.
SECTION 114. LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date, or Stated
Maturity of any Note shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture) payment need not be made
at such Place of Payment on such date, but may be made on the next succeeding
day that is a Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, or at the
Stated Maturity, and no interest shall accrue on the amount payable on such date
or at such time for the period from and after such Interest Payment Date,
Redemption Date, or Stated Maturity, as the case may be.
SECTION 115. SCHEDULES.
Any Schedules attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
SECTION 116. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
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SECTION 117. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture, or of any Note, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation or Person, either directly or through
the Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company or of any successor corporation or Person, or
any of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Indenture or any of the Notes or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Notes or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Notes.
SECTION 118. NO ADVERSE INTERPRETATIONS OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
ARTICLE TWO
FORM OF NOTES
SECTION 201. FORMS GENERALLY
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers executing such Notes as evidenced by their execution of such
Notes.
Notes (including the Trustee's certificate of authentication) offered
and sold shall be issued initially in the form of one or more permanent global
Notes substantially in the form set forth in Sections 202 through 204 (the
"Global Note") deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Subject to the limitation set forth in Section 301, the principal
amounts of the Global Notes may be increased or decreased from time to time by
adjustments made on the records of the Trustee as custodian for the Depository,
as hereinafter provided.
Notes (including the Trustee's certificate of authentication) exchanged
for beneficial interests in a Global Note as described in Section 312 shall be
issued in the form of permanent certificated securities in registered form in
substantially the form set forth in Sections 202 through 204 hereto ("Physical
Notes").
The Notes and the Trustee's certificate of authentication shall be in
substantially the respective forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, CUSIP or
other numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of the Notes. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
SECTION 202. FORM OF FACE OF NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE
REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
13
XXXXXX PETROLEUM COMPANY
____ % SENIOR SUBORDINATED NOTE DUE 2001
$________________________ No._____________________
XXXXXX PETROLEUM COMPANY, a Delaware corporation (herein called the
"Company" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________ ______________________________, or registered assigns, the
principal sum of ________________________ Dollars on December 15, 2001 and to
pay interest thereon at the rate of __% per annum from the Initial Interest
Accrual Date or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly on the fifteenth (15th) day of each
December, March, June, and September commencing March 15, 1997 (each an
"Interest Payment Date"), until the principal hereof is paid or made available
for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, except as provided in the Indenture hereinafter
referred to, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the first (1st) day of March, June,
September, and December, (whether or not a Business Day),as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and either may be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice whereof shall be given to the Holders not less than ten
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in New York, New
York, or in such other office or agency as may be established by the Company
pursuant to the Indenture (initially the principal corporate trust office of the
Trustee in New York, New York (the "Corporate Trust Office")), 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; PROVIDED, HOWEVER, that payment
of interest on Physical Notes on any Interest Payment Date other than at
Maturity may be made at the option of the Company by check mailed to the address
of the Person entitled thereto as such address shall appear in the Note
Register. Payments of principal and interest at maturity will be made against
presentation of this Note at the Corporate Trust Office (or such other office as
may be established pursuant to the Indenture), by check.
Reference is hereby made to the further provisions of this Note set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee or an Authenticating Agent under the Indenture referred to on the
reverse hereof by the manual signature of one of its authorized officers, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be signed in its
name by the manual or facsimile signature of its Chief Executive Officer, its
President, its Treasurer or one of its Vice Presidents and its corporate seal,
or a facsimile thereof, to be impressed or imprinted hereon, attested by the
manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
Date:
XXXXXX PETROLEUM COMPANY
By
President
[Corporate Seal]
ATTEST:
Secretary
14
SECTION 203. FORM OF REVERSE OF NOTE
XXXXXX PETROLEUM COMPANY
__% SENIOR SUBORDINATED NOTE DUE 2001
This Note is one of a duly authorized issue of Notes of the Company
designated as its __% Senior Subordinated Notes due 2001 (herein called the
"Notes') limited in aggregate principal amount to $15,000,000 (except for such
additional principal amounts, not to exceed $2,250,000, of Notes issued to cover
overallotments in the initial public offering of the Notes) issued and to be
issued under an Indenture dated as of November __, 1996 (herein called the
"Indenture"), between the Company and American Stock Transfer & Trust Company,
as Trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The indebtedness of the Company evidenced by the Notes, including the
principal thereof and interest thereon (including post-default interest), (1) is
expressly subordinated, to the extent and to the manner set forth in the
Indenture, in right of payment to the prior payment in full of all of the
Company's obligations to holders of Senior Indebtedness and (2) is unsecured by
any collateral, including the assets of the Company or any of its Subsidiaries
or Affiliates. Each Holder of Notes, by acceptance thereof, (a) agrees to and
shall be bound by such provisions of the Indenture and all other provisions of
the Indenture; (b) authorizes and directs the Trustee to take such action on
such Holder's behalf as may be necessary or appropriate to effectuate the
subordination of the Notes as provided in the Indenture; and (c) appoints the
Trustee as such Holder's attorney-in-fact for any and all such purposes.
The Notes may not be redeemed by the Company prior to December 15, 1997.
On or after December 15, 1997, the Notes may be redeemed, at the option of the
Company, in whole at any time or from time to time in part in increments of
$1,000, at 100% of the principal amount thereof, without premium, together with
interest thereon accrued to such Redemption Date. If fewer than all Notes are
redeemed, the Trustee will select the Notes to be redeemed by such method as the
Trustee may deem fair and appropriate.
Notice of redemption shall be given to the Holders of Notes to be
redeemed by mailing a notice of such redemption not less than 30 or more than 60
days prior to the Redemption Date at their addresses as they shall appear on the
Note Register, all as provided in the Indenture.
If this Note (or a portion hereof) is duly called for redemption and
funds for payment are duly provided, this Note (or such portion hereof) shall
cease to bear interest from and after such Redemption Date.
Interest installments whose Stated Maturity is on the Redemption Date
will be payable to the Holders of such Notes, or one or more Predecessor Notes,
of record at the close of business on the relevant Regular Record Date referred
to on the face hereof, all as provided in the Indenture. In the event of
redemption or repayment of this Note in part only, a new Note or Notes for the
unredeemed or unrepaid portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Except as may be provided in the Indenture, if an Event of Default with
respect to the Notes shall occur and be continuing, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes may declare
the principal of all the Notes due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that such declaration and its
consequences may, in certain events, be annulled by the Holders of a majority in
principal amount of the Outstanding Notes.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Note and (ii) discharge from certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of
15
the Holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note. Without the consent of any Holder, the
Company and the Trustee may amend or supplement the Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes and to make certain other
specified changes and other changes that do not adversely affect the interests
of any Holder in any material respect.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Note Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company, and duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture, and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes in authorized denominations, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
A director, officer, employee, incorporator, stockholder or Affiliate of
the Company, as such, past, present or future shall not have any personal
liability under this Note or the Indenture by reason of his or its status as
such director, officer, employee, incorporator, stockholder or Affiliate, or any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder, by accepting this Note, waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of this Note.
Prior to the due presentment of this Note for registration of transfer
or exchange, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary.
Each Holder of a Note covenants and agrees by such Holder's acceptance
thereof to comply with and be bound by the foregoing provisions.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to the Company at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000.
[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 as a convenience to the Holders thereof. No representation
is made as to the accuracy of such numbers as printed on the Securities and
reliance may be placed only on the other identifying information printed
hereon.]
Interest on this Note shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Note shall be governed by and construed in accordance with the laws
of the State of Texas without regard to conflicts of law principles.
16
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Notes referred to in the within mentioned Indenture.
Authentication Date:_____________ , as Trustee
By_____________________________
Authorized Signatory
ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $15,000,000 (except for such
additional principal amounts, not to exceed $2,250,000, of Notes issued to cover
overallotments in the initial public offering of the Notes), except for Notes
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Notes pursuant to Sections 304, 305, 306, 905 and 1107.
The Notes shall be known and designated as the "__% Senior Subordinated
Notes due 2001 of the Company". The Stated Maturity of all principal shall be
December 15, 2001, and they shall bear interest from the date and at the rate
per annum specified in, and such interest shall be payable on the dates
specified in, the form of Note set forth in Sections 202 and 203, until the
principal thereof is paid or made available for payment.
The principal of and interest on the Notes shall be payable at the
Office or Agency of the Company in the New York, New York ("Place of Payment")
maintained for such purposes pursuant to Section 1002; PROVIDED, HOWEVER, that,
at the option of the Company, payment of interest may be made (subject to
collection) by check mailed to the address of the Person entitled thereto as
such address shall appear on the Note Register.
The Notes shall be redeemable prior to their Stated Maturity as provided
in Article Eleven.
The Notes shall be subject to defeasance at the option of the Company as
provided in Article Twelve.
The Notes shall be subordinated in right of payment to Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
created, as provided in Article Thirteen.
SECTION 302. CURRENCY; DENOMINATIONS
The principal of and interest on the Notes shall be payable in United
States dollars or other equivalent unit of legal tender for payment of public or
private debts in the United States of America. Notes shall be issuable in
registered form only without coupons in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING
Notes shall be executed on behalf of the Company by its Chairman of the
Board, one of its Vice Chairmen of the Board, its Chief Executive Officer, its
President, its Treasurer or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
17
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes, executed by the Company, to the
Trustee for authentication and, provided that a Company Order for the
authentication and delivery of such Notes has been delivered to the Trustee, the
Trustee, in accordance with the Company Order and subject to the provisions
hereof, shall authenticate and deliver such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for in Section
204 or 612 executed by or on behalf of the Trustee by the manual signature of
one of its authorized officers or by an Authenticating Agent. Such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY NOTES
Pending the preparation of definitive Notes, the Company may execute and
deliver to the Trustee and, upon Company Order, the Trustee shall authenticate
and deliver temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Notes may determine, as conclusively evidenced by their execution of such Notes.
Such temporary Notes may be in global form.
Except in the case of temporary Notes in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Notes are
issued, the Company shall cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, such temporary
Notes shall be exchangeable for such definitive Notes upon surrender of such
temporary Notes at an Office or Agency for such Notes, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Notes, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Notes of authorized
denominations. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary Global Note, until so exchanged the temporary Notes shall
in all respects be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE
The Company shall cause to be kept a register (herein sometimes referred
to as the "Note Register") at an Office or Agency maintained pursuant to Section
1002 in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Notes and of transfers of the
Notes. The Trustee is hereby initially appointed as Note Registrar for the
Notes. In the event that the Trustee shall cease to be Note Registrar it shall
have the right to examine the Note Register at all reasonable times.
Upon surrender for registration of transfer of any Note at the Office or
Agency of the Company, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, denominated as authorized in this Indenture,
of a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
Furthermore, any Holder of a Global Note shall, by acceptance of such
Global Note, be deemed to have agreed that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by
the Depository (or its agent), and that ownership of a beneficial interest in a
Global Note shall be required to be reflected in a book entry.
At the option of the Holder, Notes may be exchanged for other Notes, in
any authorized denominations, and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such Office or Agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company evidencing the same debt and
entitling the Holders thereof to the same benefits under this Indenture as the
Notes surrendered upon such registration of transfer or exchange.
18
Every Note presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Note
Registrar for such Note) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 905 or 1107 not involving any transfer.
Neither the Trustee nor the Company shall not be required (1) to issue,
register the transfer of or exchange any Physical Notes during a period
beginning at the opening of business 15 calendar days before the day of the
selection for redemption of Notes under Section 1103 and ending at the close of
business on the day of the mailing of the relevant notice of redemption, or (2)
to register the transfer of or exchange any Physical Note so selected for
redemption in whole or in part, except in the case of any Physical Note to be
redeemed in part, the portion thereof not to be redeemed.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES
If any mutilated Note is surrendered to the Trustee, subject to the
provisions of this Section, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Note containing identical
terms and of like principal amount and bearing a number not contemporaneously
outstanding.
If there be delivered to the Company and to the Trustee (1) evidence to
their satisfaction of the destruction, loss or theft of any Note, and (2) such
Note or indemnity as may be required by them to save each of them and any agent
of either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser (or any
equivalent person under any applicable statute, rule or regulation or
interpretation then in effect), the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such destroyed, lost or stolen Note, a new Note containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section, in case any
mutilated, destroyed, lost or stolen Note has become or is about to become due
and payable or redeemed by the Company pursuant to Article Eleven hereof, the
Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note shall constitute an additional original contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture, shall be exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST, RIGHTS TO INTEREST PRESERVED
Any interest on any Note which shall be payable and is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered as of the
close of business on the Regular Record Date for such interest.
Any interest on any Note which shall be payable, but shall not be
punctually paid or duly provided for, on any Interest Payment Date for such Note
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder thereof on the relevant Regular Record Date by virtue of having been a
Holder on such date; and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below.
19
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Note (or a Predecessor Note thereof)
shall be registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of Money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such Money
when so deposited to be held in trust for the benefit of the Person entitled to
such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of such Note (or a Predecessor Note thereof) at such Holder's
address as it appears in the Note Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company cause a similar notice to be published at least once in
an Authorized Newspaper of general circulation in each Place of Payment, but
such publication shall not be a condition precedent to the establishment of such
Special Record Date and the failure of a Holder to observe such published notice
shall not entitle such Holder to additional benefits or interest with respect to
such Holder's Notes. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Note (or a
Predecessor Note thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Note Register, or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Note Register.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. PERSONS DEEMED OWNERS
Prior to due presentment of a Note for registration of transfer or
exchange, the Company, the Trustee, the Note Registrar, and any agent of the
Company or the Trustee may treat the Person in whose name such Note is
registered in the Note Register as the owner of such Note for the purpose of
receiving payment of principal of and (subject to Sections 305 and 307) interest
on such Note and for all other purposes whatsoever, whether or not any payment
with respect to such Note shall be overdue, and neither the Company, nor the
Trustee, the Note Registrar, or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Note held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Note, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Note for all purposes whatsoever. None of the Company, the Trustee, any Paying
Agent or the Note Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 309. CANCELLATION
All Notes surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Notes, as well as Notes surrendered
directly to the Trustee for any such purpose, shall be canceled promptly by
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the Trustee. The Company may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
canceled promptly by the Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Notes held by the Trustee
shall be destroyed by the Trustee (who shall deliver a certificate of
destruction thereof to the Company), unless by a Company Order the Company
directs their return to the Company.
SECTION 310. AUTHENTICATION AND DELIVERY OF ORIGINAL ISSUE
Forthwith upon the execution and delivery of this Indenture, or from
time to time thereafter, Notes up to the aggregate principal amount of
$15,000,000 (plus such additional principal amounts, not to exceed $2,250,000,
of Notes issued to cover over allotments in the initial public offering of the
Notes) may be executed by the Company and delivered to the Trustee for
authentication, and shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company.
SECTION 311. COMPUTATION OF INTEREST
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months. Interest shall be payable through and excluding any
Interest Payment Date and interest shall be payable through and including any
Redemption Date.
SECTION 312. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE
Each Global Note shall be registered in the name of the Depository for
such Global Note or the nominee of such Depository and be delivered to the
Trustee as custodian for such Depository.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, 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, or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or shall
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Note.
Transfers of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository. Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global Note
if, and only if, either (1) the Depository notifies the Company that it is
unwilling or unable to continue as depository for the Global Note and a
successor depository is not appointed by the Company within 90 days of such
notice, or (2) an Event of Default has occurred and is continuing and the Note
Registrar has received a request from the Depository to issue Physical Notes in
lieu of all or a portion of the Global Note (in which case the Company shall
deliver Physical Notes within 30 days of such request).
In connection with the transfer of an entire Global Note to beneficial
owners pursuant to this Section, the Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depository, in exchange for its beneficial interest in the Global Note,
an equal aggregate principal amount of Physical Notes of authorized
denominations.
The Holder of the Global Note may grant proxies and otherwise authorize
any person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of Notes,
as expressly provided for in this Indenture) as to all Outstanding Notes, and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been mutilated, destroyed, lost
or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Notes for whose payment Money or Government
Obligations have theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(2) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of clause (2)(i), (2)(ii) or
(2)(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay
and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be, together with
instructions from the Company irrevocably directing the Trustee
to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(b) the Company has paid or caused to be paid all other sums
then due and payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together,
state that all conditions precedent herein relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if Money and/or
Government Obligations shall have been deposited with the Trustee pursuant to
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 1003, all
Money and Government Obligations deposited with the Trustee pursuant to Section
401 and all Money received by the Trustee in respect of Government Obligations
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such Money has or Government Obligations have been deposited with
or received by the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or be effected by operation of law pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a period
of 30 days, whether or not such payment is prohibited by the provisions of
Article Thirteen; or
(2) default in the payment of the principal of any Note when it
becomes due and payable at its Maturity or upon redemption, whether or not such
payment is prohibited by the provisions of Article Thirteen; or
(3) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture or the Notes (other than a covenant
or warranty a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with), and continuance of such default or breach
for a period of 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Notes a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) default in the payment at Stated Maturity of any Indebtedness
for Money Borrowed of the Company or any Restricted Subsidiary in principal
amount due at Stated Maturity in excess of $2,500,000, and such default shall
continue, without being cured, waived or consented to and without such
Indebtedness for Money Borrowed being discharged, for a period of 30 days beyond
any applicable period of grace; or
(5) the occurrence of an event of default as defined in 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 of the
Company or any Restricted Subsidiary (or the payment of which is guaranteed by
the Company), whether such Indebtedness for Money Borrowed now exists or shall
hereafter be created, PROVIDED, HOWEVER, that no such event of default shall
constitute an Event of Default hereunder unless the effect of such event of
default is to cause the acceleration of such Indebtedness for Money Borrowed
prior to its expressed maturity, which together with the principal amount of any
such other Indebtedness for Money Borrowed so caused to be accelerated,
aggregates $2,500,000 or more at any one point in time and such default shall
not have been cured or waived and such acceleration shall not have been
rescinded or annulled within a period of 30 days from the occurrence of such
acceleration; or
(6) the entry by a court or agency or supervisory authority
having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company
or any Material Subsidiary in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(b) a decree or order adjudging the Company or any
Material Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or any
Material Subsidiary and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(c) a decree or order appointing any Person to act as a
custodian, receiver, liquidator, assignee, trustee or other similar official of
the Company or any Material Subsidiary or of any substantial part of the
property of the Company or any Material Subsidiary, as the case may be, or
ordering the winding up or liquidation of the affairs of the Company or any
Material Subsidiary and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(7) the commencement by the Company or any Material Subsidiary of
a voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Company or any Material Subsidiary
to the entry of a decree or order for relief in an involuntary proceeding under
any applicable bankruptcy, insolvency,
23
reorganization or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Company or any Material Subsidiary
of a petition or answer or consent seeking reorganization or relief under any
applicable law, or the consent by the Company or any Material Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar official of the
Company or any Material Subsidiary or any substantial part of the property of
the Company or any Material Subsidiary or the making by the Company or any
Material Subsidiary of an assignment for the benefit of creditors, or the taking
of corporate action by the Company or any Material Subsidiary in furtherance of
any such action; or
(8) a final judgment, judicial decree or order for the payment of
money in excess of $2,500,000 shall be rendered against the Company or any
Material Subsidiary and such judgment, decree or order shall continue
unsatisfied for a period of 30 days without a stay of execution.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If any Event of Default (other than an Event of Default specified in
Section 501(7)) occurs and is continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then Outstanding, by written
notice to the Company (and to the Trustee if such notice is given by the
Holders), may, and the Trustee upon the request of the Holders of not less than
25% in aggregate principal amount of the Outstanding Notes shall, by a notice in
writing to the Company, declare all unpaid principal of and accrued and unpaid
interest on all the Notes to be due and payable immediately, upon which
declaration all amounts payable in respect of the Notes shall be immediately due
and payable. If an Event of Default specified in Section 501(7) occurs and is
continuing, the amounts described above shall become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder.
At any time after a declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Notes Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(1) all overdue interest on all Outstanding Notes,
(2) all unpaid principal of any Outstanding Notes which have become
due otherwise than by such declaration of acceleration and
interest on such unpaid principal at the rate borne by the
Notes,
(3) to the extent that payment of such interest is lawful, interest
on overdue interest and overdue principal at the rate borne by
the Notes (without duplication of any amount paid or deposited
pursuant to clauses (1) and (2) above), and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
(b) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction as certified to the Trustee by the Company; and
(c) all Events of Default, other than the non-payment of amounts of
principal of or interest on Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the foregoing, if an Event of Default specified in
Section 50l(4) or 501(5) shall have occurred and be continuing, such Event of
Default and any consequential acceleration shall be automatically rescinded if
the Indebtedness that is the subject of such Event of Default has been repaid,
or if the default relating to such Indebtedness is waived or cured and if such
Indebtedness has been accelerated, then the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness (provided, in each
case, that such repayment, waiver' cure or rescission is effected within a
period of 10 days from the continuation of such default beyond the applicable
grace period or the occurrence of such acceleration), and written notice of such
repayment, or cure or waiver and rescission, as the case may be, shall have been
given to the Trustee by the Company and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders or other evidence
24
satisfactory to the Trustee of such events is provided to the Trustee, within 30
days after any such acceleration in respect of the Notes, and so long as such
rescission of any such acceleration of the Notes does not conflict with any
judgment or decree as certified to the Trustee by the Company.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of interest on any
Note when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of any Note at the
Maturity thereof, the Company will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Notes, the whole amount then due
and payable on such Notes for principal and interest, and interest on any
overdue principal and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installment of interest, at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes,
their creditors or the Property of the Company or of such other obligor, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company or such other
obligor for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such other papers
or documents and take any other actions including participation as a full member
of any creditor or other committee as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) subject to Article Thirteen, to collect and receive any moneys or
other Property payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
25
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in the case of the distribution of such money on account of principal or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid;
FIRST: to the payment of all amounts due the Trustee under
Section 607;
SECOND: subject to Article Thirteen, to the payment of the
amounts then due and unpaid for principal of and interest on the Notes
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal and
interest, respectively; and
THIRD: subject to Article Thirteen, the balance, if any, to the
Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Notes shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or more in
aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture (but subject to
Article Thirteen), the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment, as provided herein and in such
Note of the principal of and (subject to Section 307) interest on, such Note on
the respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
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If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereunder and all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
existing Default or Event of Default hereunder and its consequences, except a
Default or Event of Default on any Note,
(a) in respect of the payment of the principal of or interest on any
Note, or
(b) in respect of a covenant or provision hereof which under Article
Nine hereof cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected thereby.
Upon any such waiver, such Default or Event of Default shall cease to
exist for every purpose under this Indenture, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon. Any such waiver may (but need not) be given in connection
with a tender offer or exchange offer for the Notes.
SECTION 514. UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its
27
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% in principal
amount of the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or interest on any Note on or
after the respective Stated Maturities expressed in such Note (or, in the case
of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension, or usury law or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, or which may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(2) In case 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(3) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) this Subsection shall not be construed to limit the effect of
Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Notes, relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Notes, provided such
direction shall not be in conflict with any rule of law or with this Indenture;
and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(4) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS
Within 90 days after the occurrence of any Event of Default hereunder,
the Trustee shall transmit to the Holders of Notes, in the manner and to the
extent provided in Section 313 (c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Notes; and PROVIDED, FURTHER, that
in the case of any default of the character specified in Section 501 (3) with
respect to Notes, no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 601 hereof:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) 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 of Notes pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, fees, expenses and liabilities which might be incurred by it, including
reasonable fees of counsel, in complying with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and premises of
the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES
The recitals contained herein and in the Notes, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this
29
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Notes or the proceeds thereof.
SECTION 605. MAY HOLD NOTES
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such
other agent.
SECTION 606. MONEY HELD IN TRUST
Except as provided in Section 402 and Section 1003, Money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any Money received by it hereunder except as otherwise agreed with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such money shall be paid to the Company from time to
time upon receipt by the Trustee of a Company Order except as otherwise provided
in this Indenture.
SECTION 607. COMPENSATION AND REIMBURSEMENT
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable costs, expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on their part, arising out of or in connection with the acceptance or
administration of the trust hereunder, including the costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Notes upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of and interest on Notes.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable compensation, expenses and disbursements of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee and each predecessor Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
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, any
state thereof or the District of Columbia, authorized under such laws to
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exercise corporate trust powers, or any other person permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 610.
(2) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 610 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(3) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Notes delivered to the
Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or any Holder of a Note who has been a bona fide
Holder of a Note for at least six months, or
(b) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the Company or by
any Holder of the Notes who has been a bona fide Holder of a Note for at least
six months, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee, or (ii) subject to Section 315 (e) of the Trust
Indenture Act, any Holder of a Note who has been a bona fide Holder of a Note
for at least six months may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 610,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company
or the Holders of Notes and accepted appointment in the manner required by
Section 610, any Holder of a Note who has been a bona fide Holder of a Note for
at least six months may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(6) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Notes as their names and addresses appear in the Note Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
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SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
Upon the appointment hereunder of any successor Trustee, such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties hereunder of the retiring
Trustee; but, on the request of the Company or such successor Trustee, such
retiring Trustee, upon payment of all amounts due it under Section 607, shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and Money held by
such retiring Trustee hereunder.
Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in this Section.
No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS
Any Corporation into which the Trustee may be merged or converted or
with which it may be Consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 612. APPOINTMENT OF AUTHENTICATION AGENT
The Trustee, with the prior written consent of the Company and after
giving notice of the appointment described in this Section 612 in the manner
provided in Section 106 to all Holders of Notes, may appoint one or more
Authenticating Agents with respect to the Notes which shall be authorized to act
on behalf of the Trustee to authenticate Notes issued upon original issue,
exchange, registration of transfer, partial redemption or pursuant to Section
306, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a Corporation (organized and doing business under the laws of
the United States, authorized under such laws to act as Authenticating Agent)
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a) (2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be Consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a
32
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Notes, if any, as their names and addresses appear
in the Note Register. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed pursuant to this Section, the
Notes may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
This is one of the Notes referred to in the within mentioned Indenture.
Authentication Date: , Authenticating Agent
By:
Authorized Signatory
SECTION 613. CONFLICTING INTERESTS
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act; PROVIDED, HOWEVER, there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 614. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor under the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually no later than [July 15] and [January 15] of
each year, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the preceding [June 30] or
[December 31], as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Note Registrar no such
list shall be required to be furnished for Notes for which the Trustee acts as
Note Registrar.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Notes contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and address of Holders of Notes received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders of Notes to communicate with other Holders of
Notes with respect to their rights under this Indenture or under the Notes and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any Paying
Agent or any Note Registrar or any agent of any of them shall be held
accountable by reason of the disclosure of information as to the names and
addresses of the Holders of Notes made pursuant to the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE
(1) Within 60 days after May 15 of each year, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant
to Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313 (a) which
may have occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
SECTION 704. REPORTS BY COMPANY
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then the Company shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a Note listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
provided that notwithstanding the requirements of such rules and regulations, so
long as any Note is Outstanding the Company shall file with the Trustee at a
minimum (a) as soon as practicable, but in any event no more than one hundred
twenty (120) days, after the end of each fiscal year, copies of a balance sheet
and statements of income and retained earnings of the Company as of the end of
and for such fiscal year, audited by Independent Public Accountants, and (b) as
soon as practicable, but in any event no more than forty-five (45) days, after
the end of each quarterly fiscal period, except for the last quarterly fiscal
period in each fiscal year, a summary statement (which need not be audited) of
income and retained earnings of the Company for such period;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company, as the case may be, with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
(3) transmit to the Holders of Notes within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this
34
Section as may be required by rules and regulations prescribed from time to time
by the Commission; provided that notwithstanding the requirements of such rules
and regulations, so long as any Note is Outstanding the Company shall transmit
to the Holders of Notes, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, the information, documents and other reports required to be filed
by the Company pursuant to paragraph (1) of this Section; provided further that
in lieu of any Annual Report on Form 10-K or Quarterly Report on Form 10-Q, the
Company may transmit an annual or quarterly report, respectively, containing
financial statements and an undertaking to transmit such Form 10-K or Form 10-Q,
as the case may be, to any Holder upon request; and
(4) furnish to the Trustee the Officers' Certificates and notices
required by Section 1011 hereof.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
Nothing contained in this Indenture shall prevent any consolidation or
merger of the Company with or into any other Person or Persons (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall
prevent any conveyance, transfer or lease of the property of the Company as an
entirety or substantially as an entirety, to any other Person (whether or not
affiliated with the Company); PROVIDED, HOWEVER, that:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a Person organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed by the successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and interest on all the Notes and the performance of every other covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no event
which, after notice or lapse of time, or both, would become an Event of Default
shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this Indenture
and the Notes.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holder of Notes, the Company (when authorized
by or pursuant to a Board Resolution) and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, which shall
conform with the requirements of the Trust Indenture Act as then in effect and
be in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Notes; or
(2) to add to or change any of the provisions of this Indenture
to change or eliminate any restrictions on the payment of principal of or
interest on Notes or to permit or facilitate the issuance of Notes in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Notes in any material respect; or
(3) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Holders of Notes in any material respect; or
(4) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any Notes pursuant to Article Four; provided that any such action
shall not adversely affect the interests of any Holder of a Note in any material
respect; or
(5) to add to the covenants of the Company for the benefit of the
Holders of the Notes (as shall be specified in such supplemental indenture or
indentures) or to surrender any right or power herein conferred upon the
Company; or
(6) to evidence and provide acceptance of the appointment of a
successor Trustee hereunder; or
(7) to add any additional Events of Default; or
(8) to comply with the requirements of the Commission in
connection with the qualification of this Indenture under the Trust Indenture
Act; or
(9) to make any change that does not adversely affect the
interests of any Holder of Notes.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Notes, by Act of said Holders delivered to the Company
and the Trustee, the Company (when authorized by or pursuant to a Board
Resolution), and the Trustee may enter into one or more indentures supplemental
hereto (which shall conform with the requirements of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Notes under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture, without the consent of the Holder
of each Outstanding Note, shall
(1) change the Stated Maturity of the principal of, or reduce any
installment of interest on, any Note, or reduce the principal amount payable
upon the redemption thereof or otherwise, or reduce the rate of interest
thereon, or change the Place of Payment, currency in which the principal of or
interest on, is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date, or
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of the Holders of which is required
36
for any such supplemental indenture, or the consent of the Holders of which is
required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, or Section 513
or Section 1012, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby; PROVIDED,
HOWEVER, this clause shall not be deemed to require the consent of any Holder of
Notes with respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance with
Sections 610 and 901(6), or
(4) modify any provisions of this Indenture relating to the
relative ranking of the Notes in a manner adverse to the Holders thereof.
It shall not be necessary for any Act of Holders of Notes under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Note theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 906. EFFECT ON SENIOR INDEBTEDNESS
No supplemental indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article Thirteen unless expressly consented
to in writing by or on behalf of such holders (or by any specified percentage of
holders of a class of Senior Indebtedness required to consent thereto pursuant
to the terms of the agreement or instrument creating, evidencing or governing
such Senior Indebtedness, in which event such supplemental indenture shall be
binding on all successors and assigns of such holders and on all persons who
become holders of such Senior Indebtedness issued after the date of such
amendment or modification.
SECTION 907. RECORD DATE
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any supplemental indenture, agreement or
instrument or any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such supplemental indenture, agreement or instrument or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The record date shall be a date
no more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
No such consent shall be valid or effective for more than six months after such
record date. Subject to applicable law, until any supplemental indenture,
agreement, instrument or waiver becomes effective, or a consent to it by a
Holder of a Note shall cease to be valid and effective as set forth in the
preceding
37
sentence, such consent is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST
The Company will duly and punctually pay the principal of and interest
on the Notes in accordance with the terms thereof and this Indenture. Principal
and interest shall be considered paid on the date due if on such date the
Trustee or Paying Agent (other than the Company or its Affiliates) holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Holders of Notes on that date
pursuant to the terms of this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in each Place of Payment an Office or Agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration, transfer or exchange and where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such Office or Agency. The Company hereby
initially designates the Corporate Trust Office of the Trustee as its Office or
Agency for each of the foregoing purposes. If at any time the Company shall fail
to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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 time rescind such designations. The
Company will 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.
SECTION 1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST
If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of the principal of or interest on the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum of Money sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it shall, on
or prior to each due date of the principal of or interest on the Notes, deposit
with any Paying Agent a sum of Money sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee or the
Company to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of
or interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
provided in this Indenture;
(2) give the Trustee notice of any Event of Default by the
Company (or any other obligor upon the Notes) in the making of any payment of
principal or interest on the Notes; and
(3) at any time during the continuance of any such Event of
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent for payment in respect of the
Notes.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such Money. The Trustee and each Paying Agent shall promptly pay to the Company
upon Company Request any Money held by them (other than pursuant to Article
Twelve at any time in excess of amounts required to pay principal of or interest
on the Notes.
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 or interest on any
Note and remaining unclaimed for one year after such principal or interest shall
have become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust Money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE
Subject to Article Eight, the Company shall do or cause to be done all
things reasonably necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and its Material Subsidiaries; PROVIDED, HOWEVER, that the foregoing
shall not obligate the Company to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Material Subsidiaries, taken
as a whole, and that the loss thereof is not disadvantageous in any material
respect to the Holders of the Notes.
SECTION 1005. MAINTENANCE OF PROPERTIES
The Company will cause its properties and the properties of its Material
Subsidiaries (other than properties obtained by the Company or any Material
Subsidiary through foreclosure or other resolution of any loan) used or held for
use in the conduct of the business of the Company and its Material Subsidiaries
to be maintained and kept in good condition, repair and working order (ordinary
wear and tear excepted), all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that the foregoing
shall not prevent the Company or a Material Subsidiary from discontinuing the
operation and maintenance of any of its properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Material Subsidiary and not disadvantageous in any material
respect to the Holders of the Notes;
SECTION 1006. RESTRICTIONS ON DIVIDENDS, REDEMPTION AND OTHER PAYMENTS
(a) The Company shall not, either directly or indirectly through any
Restricted Subsidiary, (i) declare or pay any dividend, either in cash or
property, on any shares of its capital stock (except dividends or other
distributions payable solely in shares of capital stock of the Company), (ii)
purchase, redeem or retire any shares of its capital stock or any warrants,
rights or options to purchase or acquire any shares of its capital stock or
(iii) make any other payment or distribution, in respect of the Company's
capital stock (such dividends, purchases, redemptions, retirements, payments and
distributions being herein collectively called "Restricted Payments") if, after
giving effect thereto,
(1) an Event of Default would have occurred; or
(2) (A) the sum of (i) such Restricted Payments plus (ii) the
aggregate amount of all Restricted Payments made during the period after the
date of this Indenture would exceed (B) the sum of (i) $10 million plus (ii) 50%
of the Company's Consolidated Net Income for each fiscal year commencing
subsequent to September 30, 1996 (with 100% reduction for a loss in any fiscal
year), plus (iii) the cumulative net proceeds received by the Company from the
issuance or sale after the date of this Indenture of capital stock of the
Company (including in such net proceeds the face amount of any indebtedness that
has been converted into common stock of the Company after the date of this
Indenture).
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(b) Notwithstanding paragraph (a) above, the Company may take the
following actions (so long as no Event of Default shall have occurred and be
continuing):
(i) the payment of dividends on any of the shares of the capital
stock of the Company (including, without limitation, the Series A Preferred
Stock of the Company); and
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of any class of capital stock of the Company or any
Restricted Subsidiary, in exchange for, or out of the aggregate net cash
proceeds of a substantially concurrent issue and sale (other than to a
Restricted Subsidiary) of shares of common stock of the Company.
The actions described in clauses (i) and (ii) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
Section and shall not reduce the amount that would otherwise be available for
Restricted Payments under clause (2) of paragraph (a). For purposes of this
Section 1006, the amount of any Restricted Payment payable in property shall be
deemed to be the fair market value of such property as determined by the Board
of Directors of the Company.
SECTION 1007. LIMITATIONS ON INDEBTEDNESS FOR MONEY BORROWED
(a) Neither the Company nor any Restricted Subsidiary will create,
incur, assume, guarantee or become liable (collectively "incur") with respect to
any Indebtedness for Money Borrowed (including Acquired Indebtedness but
excluding Permitted Indebtedness) if, immediately after giving effect to any
such creation, incurrence, assumption or guarantee (including giving effect to
the retirement of any existing Indebtedness for Money Borrowed from the proceeds
of such additional Indebtedness for Money Borrowed):
(i) The ratio of (a) the aggregate amount of the outstanding
Indebtedness for Money Borrowed of the Company and its Restricted
Subsidiaries at the end of the immediately preceding fiscal quarter of
the Company, as determined on a Consolidated basis in accordance with
GAAP, to (b) the Consolidated EBITDA for the immediately preceding four
fiscal quarter of the Company, would exceed 10.0 to 1.0; or
(ii) The Interest Coverage Ratio would have been at least 1.1 to
1.0.
(b) The Company will not permit any Restricted Subsidiary to incur any
Indebtedness for Money Borrowed (except Indebtedness for Money Borrowed to the
Company or another Restricted Subsidiary) that is expressly subordinate in right
of payment to any other Indebtedness for Money Borrowed of such Restricted
Subsidiary.
SECTION 1008. LIMITATION LIENS.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind, except for Permitted Liens, upon any of their respective assets or
properties, whether now owned or acquired after the date of this Indenture, or
any income or profits therefrom to secure any Pari Passu Indebtedness or Junior
Indebtedness, unless prior to or contemporaneously therewith the Notes are
directly secured equally and ratably, provided that (1) if such secured
indebtedness is Pari Passu Indebtedness, the Lien securing such Pari Passu
Indebtedness shall be subordinate and junior to, or pari passu with, the Lien
securing the Notes and (2) if such secured indebtedness is Subordinated
Indebtedness, the Lien securing such Subordinated Indebtedness shall be
subordinate and junior to the Lien securing the Notes at least to the same
extent as such Subordinated Indebtedness is subordinated to the Notes. The
foregoing covenant will not apply to any Lien securing Acquired Indebtedness,
provided that any such Lien extends only to the properties or assets that were
subject to such Lien prior to the related acquisition by the Company or such
Restricted Subsidiary and was not created, incurred or assumed in contemplation
of such transaction.
SECTION 1009. INSURANCE
The Company shall carry and maintain, and cause each of its Restricted
Subsidiaries to carry and maintain, insurance with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by similarly-situated companies engaged in similar
operations and owning similar properties in similar geographic areas in which
the Company or
40
such Restricted Subsidiary operates, provided that such insurance is generally
available at commercially reasonable rates, and provided further that the
Company or any Restricted Subsidiary may self-insure, or insure through captive
insurers or insurance cooperatives to the extent consistent with prudent
business practices.
SECTION 1010. PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (2) all material lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Restricted Subsidiary; PROVIDED, HOWEVER, that the Company
and its Restricted Subsidiaries shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made in
accordance with GAAP.
SECTION 1011. STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company and within 45 days after the end of each of
the first, second and third quarters of each fiscal year of the Company, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder), and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1012. WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1005 through 1011 and 1013 through
1015 if, before or after the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Notes, by Act of such Holders,
either shall waive such compliance in such instance or generally shall have
waived compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1013. LIMITATION ON RANKING OF FUTURE INDEBTEDNESS
The Company will not incur (as such term is defined in Section 1007(a))
or permit to remain outstanding any Indebtedness for Money Borrowed (including
Acquired Indebtedness and Permitted Indebtedness) which is expressly subordinate
in right of payment to any Senior Indebtedness, other than Subordinated
Indebtedness or Pari Passu Indebtedness. For purposes of this Section 1013, the
incurrence of Senior Indebtedness which is unsecured shall not, because of its
unsecured status, be deemed to be subordinate in right of payment to any Senior
Indebtedness which is secured.
SECTION 1014. LIMITATIONS ON RESTRICTING SUBSIDIARY DIVIDENDS
The Company shall not and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause to become effective any
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distribution on its capital
stock, (b) pay any indebtedness owed to the Company or any other Restricted
Subsidiary, (c) make loans, advances, or capital contributions to the Company or
any other Restricted Subsidiary, or (d) transfer any of its properties or assets
to the Company or another Restricted Subsidiary, except in each instance (i) as
set forth in the instrument evidencing or the agreement governing Acquired
Indebtedness of any acquired Person which becomes a Restricted Subsidiary,
provided, that any restriction or encumbrance under such instrument or agreement
existed at the time of acquisition, was not put in place in anticipation of such
acquisition, and is not applicable to any Person, other than the Person or
property or assets of the Person so acquired; (ii) customary provisions of any
lease or license of the Company or any Restricted Subsidiary relating to the
property covered thereby and entered into in the ordinary course of business;
(iii) any encumbrance or restriction arising under applicable law; (iv) any
encumbrance or restriction arising under this Indenture, the Credit Facility, or
other indebtedness or other agreements existing on the date of original issuance
of the Notes; (v) any restrictions, with respect to a Restricted Subsidiary
imposed pursuant to an agreement that has been entered into for the sale or
disposition of the stock, business, assets or properties of such Restricted
Subsidiary; (vi) any encumbrance or restriction arising under the terms of
purchase money obligations, but only to the extent such purchase money
obligations restrict or prohibit the transfer of the property so acquired; (vii)
any encumbrance
41
or restriction arising under customary non-assignment provisions
in installment purchase contracts; (viii) any encumbrance or restriction on the
ability of any Restricted Subsidiary to transfer any of its property acquired
after the date of this Indenture to the Company or any other Restricted
Subsidiary that is required by a lender to, or purchaser of any indebtedness of,
such Restricted Subsidiary in connection with a financing of the acquisition of
such property (including with respect to the purchase of asset portfolios and
pursuant to the underwriting or origination of mortgage loans) by such
Restricted Subsidiary; and (ix) any encumbrance or restriction pursuant to any
agreement that extends, refinances, renews or replaces any agreement described
in the foregoing clauses (i) through (viii); and except with respect to clause
(d) only, restrictions in the form of Liens which are not prohibited under
Section 1008 and which contain customary limitations on the transfer of
collateral.
SECTION 1015. LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any transaction (or series of related transactions),
including, without limitation, the sale, purchase, lease or exchange of any
property or the rendering of any service (a "Transaction"), involving payments
in excess of $50,000, with any Affiliate of the Company (other than the Company
or a Restricted Subsidiary), on terms and conditions less favorable to the
Company or such Restricted Subsidiary, as the case may be, than would be
available at such time in a comparable Transaction in arm's length dealings with
an unrelated Person as determined by the Board of Directors, such approval to be
evidenced by a Board Resolution.
The provisions of the immediately preceding paragraph will not apply to:
(1) Restricted Payments otherwise permitted under Section 1006;
(2) fees and compensation (including amounts paid pursuant to
employee benefit plans) paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Restricted Subsidiary,
as determined by the Board of Directors or the senior management thereof in the
exercise of their reasonable business judgment; or
(3) payments for goods and services purchased in the ordinary
course of business on an arm's length basis.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. RIGHT OF REDEMPTION
The Notes shall not be redeemable at the option of the Company prior to
December 15, 1997. The Company may, at its option, redeem all or any part of the
Notes at any time on or after December 15, 1997, at the Redemption Price of 100%
of the principal amount thereof, without premium, together with interest accrued
to the Redemption Date. Redemption of Notes at the option of the Company as
permitted hereby shall be made in accordance with the terms of such Notes and
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Notes shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all of the Notes (including any such redemption affecting
only a single Note), the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Notes to be redeemed. Any election to redeem Notes shall be revocable until
the Company gives a notice of redemption pursuant to Section 1104 to the Holders
of Notes to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED
If less than all the Notes are to be redeemed (unless such redemption
affects only a single Note), the particular Notes to be redeemed shall be
selected not less than 30 days prior to the Redemption Date by the Trustee from
the Outstanding Notes, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Notes; PROVIDED, HOWEVER, that no such partial
redemption shall reduce the portion of the principal amount of a Note not
redeemed to less than the minimum denomination for a Note established herein.
42
The Trustee shall promptly notify the Company and the Note Registrar (if
other than itself) in writing of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Note, whether such Note is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Note shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Note.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal of such Notes which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, to the
Holders of Notes to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Notes designated for redemption as a whole
or in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Notes or portion
thereof.
Any notice that is mailed to the Holder of any Notes in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if fewer than all Outstanding Notes consisting of more than a
single Note are to be redeemed, the identification (and, in the case of partial
redemption of any such Notes, the principal amounts) of the particular Notes to
be redeemed and, if less than all the Outstanding Notes consisting of a single
Note are to be redeemed, the principal amount of the particular Note to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Note or portion thereof to be redeemed and
that interest thereon shall cease to accrue on and after said date,
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price, and
(6) the CUSIP number of such Notes, if any (or any other numbers
used by a Depository to identify such Notes).
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) Money, in funds
available for payment by the Trustee on the Redemption Date, in an amount
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) any accrued interest on, all the Notes or
portions thereof which are to be redeemed on that date. Upon Company Order, the
Paying Agent shall promptly return to the Company any money so deposited which
is not required for such purpose.
SECTION 1106. NOTES PAYABLE ON REDEMPTION DATE
43
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with any accrued interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest on Notes whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the Regular Record Dates therefor according to their terms and the
provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, until paid, shall bear interest from the
Redemption Date at the rate prescribed therefor in the Note.
SECTION 1107. NOTES REDEEMED IN PART
Any Note which is to be redeemed only in part shall be surrendered at
any Office or Agency for such Note (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
SECTION 1108. PURCHASE OF NOTES.
The Company shall have the right at any time and from time to time to
purchase Notes in the open market or otherwise at any price.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Notes upon compliance with the conditions set forth
below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1202, the Company shall be deemed to have been discharged from
its obligations with respect to all Outstanding Notes on the date the conditions
set forth in Section 1204 hereof are satisfied (hereinafter, "legal
defeasance"). For this purpose, such legal defeasance means that the Company
shall be deemed (i) to have paid and discharged its obligations under the
Outstanding Notes; PROVIDED, HOWEVER, that the Notes shall continue to be deemed
to be "Outstanding" for purposes of Section 1205 and the other Sections of this
Indenture referred to in clauses (A) and (B) below, and (ii) to have satisfied
all their other obligations with respect to such Notes and this Indenture (and
the Trustee, at the expense and direction of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Notes to receive, solely from the trust fund described in
Section 1204 hereof and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Notes when such payments are
due (or at such time as the Notes would be subject to redemption at the option
of the Company in accordance with this Indenture), (B) the obligations of the
Company under Sections 303, 304, 305, 306, 1002, and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and (D) the
obligations of the Company under this Article Twelve. Subject to compliance with
this Article Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Notes.
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SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1203, (i) the Company shall be released from its obligations
under any covenant contained in Article Eight, in Sections 1005 through 1015,
and any covenant added to this Indenture pursuant to Section 901(2), and (ii)
the occurrence of any event specified in Section 501(3) (with respect to any of
Article Eight, Sections 1005 through 1015, and any covenant added to this
Indenture pursuant to Section 901(2), 501(4), 501(5), or 501(6)) shall be deemed
not to be or result in an Event of Default, in each case 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 to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Outstanding 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 Section (to the extent so specified in the case
of Sections 50l(3) hereof) whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1202 or Section 1203 hereof to the Outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 608 hereof who shall agree to comply with the provisions of this Article
Twelve applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as Note for, and dedicated solely to,
the benefit of the Holders of such Notes, (A) Money in an amount, or (B)
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a nationally recognized
firm of Independent Public Accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, the
principal of and interest on the Outstanding Notes on the Stated Maturity
thereof (or Redemption Date, if applicable), provided that the Trustee shall
have been irrevocably instructed in writing by the Company to apply such Money
or the proceeds of such Government Obligations to said payments with respect to
the Notes. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102, a notice of its election to redeem all of the
Outstanding Notes at a future date in accordance with Article Eleven, which
notice shall be irrevocable. Such irrevocable redemption notice, if given, shall
be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or, insofar as Section
501(7) is concerned, at any time during the period ending on the 91st day after
the date of such deposit.
(c) Such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest under this Indenture or the Trust
Indenture Act with respect to any Notes of the Company.
(d) Such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under any other material
agreement or instrument to which the Company is a party or by which it is bound,
as evidenced to the Trustee in an Officers' Certificate delivered to the Trustee
concurrently with such deposit.
(e) In the case of an election under Section 1202 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax laws, in either case providing that
the Holders of the Outstanding 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
(it being understood that (x) such Opinion of Counsel shall also state that such
ruling or applicable law is consistent with the conclusions reached in such
Opinion of Counsel and (y) the Trustee shall be under no obligation to
investigate the basis or correctness of such ruling).
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(f) In the case of an election under Section 1203 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect 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.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together, state that all
conditions precedent provided for relating to either the legal defeasance under
Section 1202 hereof or the covenant defeasance under Section 1203 (as the case
may be) have been complied with.
SECTION 1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003 hereof,
all Money and Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 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 its
own 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 and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Governmental Obligations
deposited pursuant to Section 1204 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 Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any Money or Government Obligations held by it as provided in Section
1204 which, in the opinion of a nationally recognized firm of Independent Public
Accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent legal defeasance or covenant defeasance as
applicable, in accordance with this Article.
SECTION 1206. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; PROVIDED, HOWEVER, that if the Company makes any payment of principal of
or interest on any Note following the reinstatement of its obligations, the
Company 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 THIRTEEN
SUBORDINATION OF NOTES
SECTION 1301. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Notes and the payment of the principal of and interest on each and all of
the Notes are hereby expressly made subordinate and subject in right of payment
as provided in this Article to the prior payment in full of all Senior
Indebtedness, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed or guaranteed; PROVIDED, HOWEVER, that the Notes, the
indebtedness represented thereby and the payment of the principal of and
interest on the Notes in all respects shall rank equally with, or prior to, all
existing and future unsecured indebtedness (including, without limitation,
Indebtedness for Money Borrowed) of the Company that is subordinated to Senior
Indebtedness.
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This Article Thirteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of Properties of the Company or payment on behalf
of the Company with respect to the Notes in the event of any Insolvency or
Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive
payment in full of such Senior Indebtedness, or provision must be made for such
payment, before the Holders of the Notes are entitled to receive any direct or
indirect payment or distribution of any kind or character, whether in cash,
property or Notes (other than Permitted Junior Notes) on account of principal of
or interest on the Notes or on account of the purchase or redemption or other
acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the
Company of any kind or character, whether in cash, property or Notes (other than
a payment or distribution in the form of Permitted Junior Notes), by set-off or
otherwise, to which the Holders or the Trustee, on behalf of the Holders, would
be entitled but for the provisions of this Article shall be paid by the Company
or by any liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Note shall have received any payment
or distribution of Properties of the Company of any kind or character, whether
in cash, property or Notes, by set-off or otherwise, in respect of principal of
or interest on the Notes before all Senior Indebtedness is paid or provided for
in full, then and in such event such payment or distribution (other than a
payment or distribution in the form of Permitted Junior Notes) shall be received
and held in trust for and shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all its Properties to another Person or group of Affiliated
Persons pursuant to, and in compliance with, the terms and conditions set forth
in Article Eight hereof shall not be deemed an Insolvency or Liquidation
Proceeding (requiring the repayment of all Senior Indebtedness in full as a
prerequisite to any payments being made to the Holders) for the purposes of this
Section.
SECTION 1303. SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) Upon (1) the occurrence of a Payment Event of Default and (2)
receipt by the Trustee of written notice of such occurrence, then no payment or
distribution of any Properties of the Company of any kind or character (other
than Permitted Junior Notes) shall be made by the Company on account of
principal of or interest on the Notes or on account of the purchase or
redemption or other acquisition of Notes unless and until such Payment Event of
Default shall have been cured or waived in writing or shall have ceased to exist
or such Specified Senior Indebtedness shall have been paid in full or otherwise
discharged, after which (unless otherwise prohibited by Section 1302) the
Company shall resume making any and all required payments in respect of the
Notes, including any missed payments.
(b) Upon (1) the occurrence of a Non-payment Event of Default and (2)
receipt by the Trustee and the Company of written notice of such occurrence from
one or more of the holders of Specified Senior Indebtedness (or their
representative), then no payment or distribution of any Properties of the
Company of any kind or character (other than Permitted Junior Notes) shall be
made by the Company on account of any principal of or interest on the Notes or
on account of the purchase or redemption or other acquisition of Notes for the
period specified below (the "Payment Blockage Period"). The Payment Blockage
Period will commence upon the earlier of the dates of receipt
47
by the Trustee or the Company of such notice (the "Payment Blockage Notice")
from one or more of the holders of Specified Senior Indebtedness (or their
representative) and shall end on the earliest of (i) 179 days thereafter, (ii)
the date, as set forth in a written notice from the holders of the Specified
Senior Indebtedness (or their representative) to the Company or the Trustee, on
which such Non-payment Event of Default is cured, waived in writing or ceases to
exist or such Specified Senior Indebtedness is discharged or (iii) the date on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from one or more of the holders (or their
representative) initiating such Payment Blockage Period, after which the Company
will resume (unless otherwise prohibited pursuant to the immediately preceding
paragraph or Section 1302) making any and all required payments in respect of
the Notes, including any missed payments. In any event, not more than one
Payment Blockage Period may be commenced during any period of 360 consecutive
days. No Non-payment Event of Default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee will be, or can be,
made the basis for the commencement of a subsequent Payment Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Note prohibited by the
foregoing provisions of this Section 1303, then and in such event such payment
shall be paid over and delivered forthwith to the Company. In the event that the
Company shall make any payment in respect of the Notes to the Trustee and the
Trustee shall receive written notice of a Payment Event of Default or a
Non-payment Event of Default from one or more of the holders of Specified Senior
Indebtedness (or their representative) prior to making any payment to Holders in
respect of the Notes and prior to 11:00 a.m. Eastern time on the date which is
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose, such payments shall be paid over by the Trustee
and delivered forthwith to the Company.
SECTION 1304 . PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Notes shall prevent the Company, at any time except during the
pendency of any Insolvency or Liquidation Proceeding referred to in Section 1302
or under the conditions described in Section 1303, from making payments at any
time of principal of or interest on the Notes.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
After the payment in full of all Senior Indebtedness, the Holders of the
Notes shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to Senior
Indebtedness to substantially the same extent as the Notes are so subordinated
and which is entitled to like rights of subrogation as a result of the payments
made to the holders of Senior Indebtedness) to the rights of the holders of
Senior Indebtedness to receive payments and distributions of cash, property and
Notes applicable to Senior Indebtedness until all amounts owing on the Notes
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness by or on behalf of the
Company or by or on behalf of the Holders by virtue of this Article which
otherwise would have been made to the Holders shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Notes, be deemed to be a payment or distribution by the Company to or on account
of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are, and are intended solely, for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as between the Company and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Notes the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Notes and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee as his attorney-in-fact for any and all such purposes, including, in the
event of any Insolvency or Liquidation Proceeding with respect to the Company,
the immediate filing of a claim for the unpaid balance of his
48
Notes pursuant to this Indenture in the form required in said proceedings and
the causing of said claim to be approved.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISION.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act by any such holder, or by any non-compliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of this
Section, the holders of any Senior Indebtedness, in accordance with the terms of
the instrument or agreement evidencing their Senior Indebtedness, may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination or other benefits
provided in this Article, or the obligations hereunder of the Holders of the
Notes to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew, exchange, amend, increase or alter, Senior Indebtedness
or the terms of any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or any liability of any obligor thereon
(unless such change, extension, amendment, increase or other alteration results
in such Indebtedness no longer being Senior Indebtedness as defined in this
Indenture); (2) sell, exchange, release or otherwise deal with any Property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) settle or
compromise any Senior Indebtedness or any liability of any obligor thereon or
release any Person liable in any manner for the collection of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1309. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
one or more of the holders of Senior Indebtedness (or their representative),
with respect to a Payment Default, or one or more of the holders of Specified
Senior Indebtedness (or their representative), with respect to a Non-payment
Event of Default, or from any trustee, fiduciary or agent therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to Sections
315(a) through 315(d) of the Trust Indenture Act, shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section prior to
11:00 a.m. Eastern time on the date which is two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Note), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it on or after
11:00 a.m. Eastern time two Business Days prior to such payment date.
(b) Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act, the Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee, fiduciary or agent therefore) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
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SECTION 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT BANK.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to Sections 315(a) through 315(d) of the
Trust Indenture Act, and the Holders of the Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Insolvency or Liquidation Proceeding is pending, or a certificate of the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1311. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS:
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness, which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1312. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time a Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Section 1311 hereof shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1313. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law, except as provided in Article Five.
SECTION 1314. TRUST MONEY NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of Government Obligations held in trust under Article
Twelve hereof by the Trustee (or other qualifying trustee) and which were
deposited in accordance with the terms of Article Twelve and not in violation of
Section 1302 or 1303 for the payment of principal of and interest on the Notes
shall not be subordinated to the prior payment of any Senior Indebtedness or
subject to the restrictions set forth in this Article Thirteen, and none of the
Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness or any other creditor of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
XXXXXX PETROLEUM COMPANY
By_______________________________
Name:
Title:
Attest:
-----------------------------
-----------------------------,
as Trustee
By_______________________________
Name:
Title:
Attest:
-----------------------------
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