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EXHIBIT (4)(v)
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KCS ENERGY, INC.,
SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
U.S. BANK TRUST , NATIONAL ASSOCIATION
TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 20, 2001
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SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF
JANUARY 15, 1998
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THIS FIRST SUPPLEMENTAL INDENTURE dated as of February 20, 2001 is
between KCS ENERGY, INC., a Delaware corporation (the "COMPANY"), the SUBSIDIARY
GUARANTORS (as defined herein) and U.S. BANK TRUST, National Association, a
national banking association (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 8-7/8%
Senior Subordinated Notes due 2008, as amended or supplemented from time to time
in accordance with the terms of the Indenture (as defined herein), of
substantially the tenor and in the aggregate principal amount set forth in the
Indenture ("SECURITIES"); and the Company and the Subsidiary Guarantors have
heretofore made, executed and delivered to the Trustee its Indenture dated as of
January 15, 1998 (such Indenture being sometimes referred to herein as the
"ORIGINAL INDENTURE") pursuant to which the Securities are issuable.
It is deemed desirable to supplement and amend the Original Indenture
as set forth in this First Supplemental Indenture (the Original Indenture, as
supplemented and amended by this First Supplemental Indenture, being sometimes
referred to herein as the "INDENTURE").
Provision for the making of this First Supplemental Indenture is
contained in an order (the "ORDER") dated January 30, 2001 of the United States
Bankruptcy Court for the District of Delaware in In re KCS Energy, Inc., et al.,
Debtors, Case No. 00-0028 (PJW) and Case Nos. 00-0310 (PJW) through 00-0318
(PJW) confirming the KCS Energy, Inc., et al., Debtors, Chapter 11 Plan of
Reorganization (the "PLAN").
Pursuant to the Plan, the Holders will receive cash in the amount of
past due accrued and unpaid interest as of January 15, 2001, compounded
semi-annually at 8-7/8% per annum. In accordance with the Order, the obligations
of the Company under the Securities have been renewed and shall constitute the
obligations of the Company, as reorganized pursuant to the Order and the Plan,
and the Company, as so reorganized, is assuming all of the obligations and
duties of the Company under the Indenture. In accordance with the Order, the
unconditional guarantees of the Securities by all of the Subsidiary Guarantors
are reinstated and are the unconditional obligations of the Subsidiary
Guarantors, as reorganized pursuant to the Order and the Plan.
All things necessary to authorize the execution and delivery of this
First Supplemental Indenture to amend certain provisions of the Original
Indenture as set forth in this First Supplemental Indenture, and to make the
Original Indenture, as supplemented and amended by this First Supplemental
Indenture, a valid agreement of the Company, in accordance with its terms, have
been done.
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NOW, THEREFORE, in consideration of the premises, the Company, the
Subsidiary Guarantors and the Trustee mutually covenant and agree:
ARTICLE I
MODIFICATION OF THE ORIGINAL INDENTURE
1.1 New Definitions. Section 1.1 of the Original Indenture is
amended to add the following definitions:
(i) "Production Payment 2001 Facility" means the
transactions contemplated by one or more Purchase and
Sale Agreements dated as of February 14, 2001, among
KCS Resources, Inc., KCS Energy Services, Inc., KCS
Michigan Resources, Inc., KCS Medallion Resources,
Inc. and Star VPP, LP as the same may be amended,
modified, supplemented, extended, restated, replaced
or renewed from time to time, including the sale by
certain of the Restricted Subsidiaries of a term
overriding royalty interest and/or production payment
in a specified volume or dollar denominated amount of
hydrocarbons (or the proceeds thereof) in designated
Properties for an aggregate purchase price of
approximately $178,000,000.
(ii) "Production Payment 2001 Obligations" means, as of
any date on which the amount thereof is to be
determined, the obligations of the Company or any
Restricted Subsidiary under the Production Payment
2001 Facility either recorded as liabilities in
accordance with GAAP or as deferred revenues in
accordance with GAAP.
(iii) "Series A Convertible Preferred Stock" means the
Series A Convertible Preferred Stock of the Company
bearing a fixed, preferred dividend of 5% per annum
and having a stated value and liquidation preference
of $30,000,000.
1.2 Definition of Bank Credit Facilities. The definition of
"Bank Credit Facilities" in the Original Indenture is amended to read as
follows:
"Bank Credit Facilities" means one or more credit or
loan agreements among the Company, the Restricted
Subsidiaries signatory thereto, the lenders signatory
thereto, and one or more agents signatory thereto
providing for secured loans to the Company and one or
more of its Restricted Subsidiaries together with any
guarantees relating thereto, as the same may be
amended, modified, supplemented, extended, restated,
replaced, renewed or refinanced from time to time in
one or more credit agreements, loan agreements,
instruments or similar agreements, as such may be
further amended, modified, supplemented, extended,
restated, replaced, renewed or refinanced.
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1.3 Definition of Permitted Indebtedness. The definition of
"Permitted Indebtedness" in the Original Indenture is amended by amending clause
(i) to read as follows, by striking the word "and" at the end of clause (ix),
changing the period at the end of clause (x) to a semicolon, adding the word
"and" after the semicolon at the end of clause (x) and adding a clause (xi)
reading as follows:
(i) Indebtedness under the Bank Credit Facilities in an
aggregate principal amount at any one time
outstanding not to exceed the greater of $165,000,000
or the Borrowing Base (the "Maximum Credit Amount"),
plus all interest and fees under such facilities and
any guarantee of any such Indebtedness; PROVIDED,
HOWEVER, that the Maximum Credit Amount shall be
reduced by the outstanding amount, if any, of the
Production Payment 2001 Obligations;
(xi) Indebtedness, if any, under the Production Payment
2001 Facility; PROVIDED, HOWEVER, that the purchase
price received with respect thereto shall not exceed
$178,000,000.
1.4 Definition of Permitted Liens. The definition of Permitted
Liens in the Original Indenture is amended by adding thereto a last sentence
which shall read as follows: Notwithstanding anything to the contrary contained
in this Indenture, including without limitation the provisions of the
immediately preceding sentence, Liens securing any of the obligations (including
without limitation any Indebtedness) of the Company and any Restricted
Subsidiary under or pursuant to the Production Payment 2001 Facility shall be
Permitted Liens if the purchase price received under the Production Payment 2001
Facility does not exceed $178,000,000.
1.5 Stated Maturity; Designation of Securities. Section 3.1 of
the Original Indenture is amended to provide that the Stated Maturity of the
Securities is January 15, 2006. All other references, direct or indirect, in the
Original Indenture and the Securities to the Stated Maturity of the Securities
shall be deemed amended accordingly, including, without limitation, the
following:
(i) all references to the Securities in the Original
Indenture and in any Securities shall be references
to the 8-7/8% Senior Subordinated Notes due 2006; and
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(ii) all references to the date January 15, 2008 in the
Original Indenture and in any Securities are amended
to read January 15, 2006.
1.6 Section 10.10. Section 10.10 of the Original Indenture is
amended to add paragraph (d) as follows:
(d) Notwithstanding any provision in this Section 10.10
or any other Section of this Indenture to the
contrary and in addition to any other restriction
contained in any other provision of this Indenture,
the Company shall not and shall not permit any
Restricted Subsidiary to, utilize, in the aggregate,
more than 50% of the Consolidated Net Income of the
Company accrued on a cumulative basis during the
period beginning after December 31, 2000 and ending
on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed action to
(1) purchase or redeem the Series A Convertible
Preferred Stock for cash or (2) pay any dividend on
any shares of Capital Stock of the Company in cash
other than dividends on shares of Series A
Convertible Preferred Stock payable in cash in lieu
of fractional shares of Common Stock in those cases
where dividends are declared on shares of Series A
Convertible Preferred Stock in shares of Common
Stock. Consolidated Net Income shall be computed for
purposes of this paragraph (d) in the same manner
that Consolidated Net Income is computed in
accordance with the provisions of paragraph (a)
above.
ARTICLE II
PARTICULAR REPRESENTATIONS
AND COVENANTS OF THE COMPANY
2.1 Authority of the Company. The Company is duly authorized
to execute and deliver this First Supplemental Indenture pursuant to an Order
(the "Order") dated January 30, 2001 of the United States Bankruptcy Court for
the District of Delaware in In re KCS Energy, Inc., et al., Debtors, Case No.
00-0028 (PJW) and Case Nos. 00-0310 (PJW) through 00-0318 (PJW) confirming the
KCS Energy, Inc., et al., Debtors, Chapter 11 Plan of Reorganization, and all
corporate action on its part required for the execution and delivery of this
First Supplemental Indenture has been duly and effectively taken.
2.2 Authority of the Subsidiary Guarantors. Each of the
Subsidiary Guarantors is duly authorized pursuant to the Order to execute and
deliver this First Supplemental Indenture, and all corporate action on the part
of each required for the execution and delivery of this First Supplemental
Indenture has been duly and effectively taken.
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2.3 Assumption of Indenture Obligations. The Company and
each of the Subsidiary Guarantors, each as reorganized pursuant to the Order and
the Plan, hereby assume all of the obligations of the Company and each of the
Subsidiary Guarantors under the Securities and the Indenture.
2.4 Truth of Recitals and Statements. The Company warrants
that the recitals of fact and statements contained in this First Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished hereunder will be
true and correct.
ARTICLE III
CONCERNING THE TRUSTEE
3.1 Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture and in this First Supplemental Indenture, to
all of which the Company, the Subsidiary Guarantors and the respective Holders
of Securities at any time hereafter outstanding agree by their acceptance
thereof.
3.2 Responsibility of Trustee for Recitals, etc. The
recitals and statements contained in this First Supplemental Indenture shall be
taken as the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this First Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Relation to the Indenture. The provisions of this First
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This First Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and with
the same effect as if all such terms and provisions had been set forth in the
Original Indenture. The Original Indenture is hereby ratified and confirmed and
shall remain and continue in full force and effect in accordance with the terms
and provisions thereof, as supplemented and amended by this First Supplemental
Indenture, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed together as one instrument.
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4.2 Meaning of Terms. Any capitalized term used in this
First Supplemental Indenture and not defined herein that is defined in the
Original Indenture shall have the meaning specified in the Original Indenture,
unless the context shall otherwise require.
4.3 Counterparts of First Supplemental Indenture. This First
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
4.4 Governing Law. This First Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Company: KCS ENERGY, INC.
By:
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Subsidiary Guarantors: KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS ENERGY MARKETING, INC.,
NATIONAL ENERDRILL CORPORATION
PROLIQ, INC.,
KCS ENERGY SERVICES, INC.,
KCS MEDALLION RESOURCES, INC.,
MEDALLION GAS SERVICES, INC., and
MEDALLION CALIFORNIA PROPERTIES
COMPANY
By:
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Trustee: U.S. BANK TRUST, National Association,
As Trustee
By:
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EXHIBIT (4)(v)
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KCS ENERGY, INC.,
SUBSIDIARY GUARANTORS
NAMED HEREIN
and
STATE STREET BANK AND TRUST COMPANY
Trustee
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INDENTURE
Dated as of January 15, 1998
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8 7/8% Senior Subordinated Notes due 2008
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions ............................................................ 2
Section 1.2 Other Definitions ...................................................... 22
Section 1.3 Incorporation by Reference of Trust Indenture Act....................... 23
Section 1.4 Rules of Construction .................................................. 23
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally ........................................................ 24
Section 2.2 Form of Face of Security ............................................... 25
Section 2.3 Form of Reverse of Security ............................................ 26
Section 2.4 Form of Notation Relating to Subsidiary Guarantees ..................... 31
Section 2.5 Form of Trustee's Certificate of Authentication ........................ 33
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms ........................................................ 34
Section 3.2 Denominations .......................................................... 34
Section 3.3 Execution, Authentication, Delivery and Dating ......................... 35
Section 3.4 Temporary Securities ................................................... 36
Section 3.5 Registration of Transfer and Exchange .................................. 36
Section 3.6 Book-Entry Provisions for Global Securities ............................ 38
Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities ....................... 39
Section 3.8 Payment of Interest; Interest Rights Preserved ......................... 40
Section 3.9 Persons Deemed Owners .................................................. 41
Section 3.10 Cancellation ........................................................... 41
Section 3.11 Computation of Interest ................................................ 41
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture ................................ 42
Section 4.2 Application of Trust Money ............................................. 43
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ARTICLE V
REMEDIES
Section 5.1 Events of Default ...................................................... 43
Section 5.2 Acceleration of Maturity; Rescission and Annulment ..................... 45
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee ........ 46
Section 5.4 Trustee May File Proofs of Claim ....................................... 47
Section 5.5 Trustee May Enforce Claims Without Possession of Securities ............ 48
Section 5.6 Application of Money Collected ......................................... 48
Section 5.7 Limitation on Suits .................................................... 49
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest ............................................................... 49
Section 5.9 Restoration of Rights and Remedies ..................................... 49
Section 5.10 Rights and Remedies Cumulative ......................................... 50
Section 5.11 Delay or Omission Not Waiver ........................................... 50
Section 5.12 Control by Holders ..................................................... 50
Section 5.13 Waiver of Past Defaults ................................................ 50
Section 5.14 Waiver of Stay, Extension or Usury Laws ................................ 51
ARTICLE VI
THE TRUSTEE
Section 6.1 Duties of Trustee ...................................................... 51
Section 6.2 Certain Rights of Trustee .............................................. 52
Section 6.3 Trustee Not Responsible for Recitals or Issuance of Securities ......... 53
Section 6.4 May Hold Securities .................................................... 53
Section 6.5 Money Held in Trust .................................................... 54
Section 6.6 Compensation and Reimbursement ......................................... 54
Section 6.7 Corporate Trustee Required; Eligibility ................................ 55
Section 6.8 Conflicting Interests .................................................. 55
Section 6.9 Resignation and Removal; Appointment of Successor ...................... 55
Section 6.10 Acceptance of Appointment by Successor ................................. 56
Section 6.11 Merger, Conversion, Consolidation or Succession to Business ............
Section 6.12 Preferential Collection of Claims Against Company ...................... 57
Section 6.13 Notice of Default ...................................................... 57
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Holders' Lists; Holder Communications; Disclosures Respecting Holders .. 58
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Section 7.2 Reports By Trustee ..................................................... 58
Section 7.3 Reports by Company ..................................................... 59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only on Certain Terms ................... 59
Section 8.2 Successor Substituted .................................................. 61
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders ..................... 61
Section 9.2 Supplemental Indentures with Consent of Holders ........................ 62
Section 9.3 Execution of Supplemental Indentures ................................... 63
Section 9.4 Effect of Supplemental Indentures ...................................... 63
Section 9.5 Conformity with Trust Indenture Act .................................... 63
Section 9.6 Reference in Securities to Supplemental Indentures ..................... 63
Section 9.7 Notice of Supplemental Indentures ...................................... 63
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and Interest .................... 64
Section 10.2 Maintenance of Office or Agency ........................................ 64
Section 10.3 Money for Security Payments to Be Held in Trust ........................ 64
Section 10.4 Corporate Existence .................................................... 66
Section 10.5 Payment of Taxes; Maintenance of Properties; Insurance ................. 66
Section 10.6 Limitation on Other Senior Subordinated Indebtedness ................... 67
Section 10.7 Limitation on Conduct of Business ...................................... 67
Section 10.8 Statement by Officers as to Default .................................... 67
Section 10.9 Provision of Financial Information ..................................... 68
Section 10.10 Limitation on Restricted Payments ...................................... 68
Section 10.11 Limitation on Guarantees by Subsidiary Guarantors ...................... 70
Section 10.12 Limitation on Indebtedness and Disqualified Capital Stock .............. 71
Section 10.13 Additional Subsidiary Guarantors ....................................... 71
Section 10.14 Limitation on Issuances and Sales of Capital Stock by Restricted
Subsidiaries ........................................................... 71
Section 10.15 Limitation on Liens .................................................... 72
Section 10.16 Purchase of Securities Upon Change of Control .......................... 72
Section 10.17 Limitation on Asset Sales, ............................................. 74
Section 10.18 Limitation on Transactions with Affiliates ............................. 76
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Section 10.19 Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries ................................................ 77
Section 10.20 Waiver of Certain Covenants ............................................ 77
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption .................................................... 78
Section 11.2 Applicability of Article ............................................... 78
Section 11.3 Election to Redeem; Notice to Trustee .................................. 78
Section 11.4 Selection by Trustee of Securities to Be Redeemed ...................... 79
Section 11.5 Notice of Redemption ................................................... 79
Section 11.6 Deposit of Redemption Price ............................................ 80
Section 11.7 Securities Payable on Redemption Date .................................. 80
Section 11.8 Securities Redeemed in Part ............................................ 80
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or Covenant Defeasance ........... 81
Section 12.2 Defeasance and Discharge ............................................... 81
Section 12.3 Covenant Defeasance .................................................... 82
Section 12.4 Conditions to Defeasance or Covenant Defeasance ........................ 82
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions .................................. 84
Section 12.6 Reinstatement .......................................................... 84
ARTICLE XIII
SUBSIDIARY GUARANTEES
Section 13.1 Unconditional Guarantee ................................................ 85
Section 13.2 Subsidiary Guarantors May Consolidate, etc., on Certain Terms .......... 86
Section 13.3 Release of Subsidiary Guarantors ....................................... 87
Section 13.4 Limitation of Subsidiary Guarantors' Liability ......................... 87
Section 13.5 Contribution ........................................................... 88
Section 13.6 Execution and Delivery of Notations of Subsidiary Guarantees ........... 88
Section 13.7 Severability ........................................................... 88
Section 13.8 Subordination of Subsidiary Guarantees ................................. 89
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ARTICLE XIV
SUBORDINATION
Section 14.1 Agreement to Subordinate ............................................... 89
Section 14.2 Certain Definitions .................................................... 89
Section 14.3 Liquidation; Dissolution; Bankruptcy ................................... 90
Section 14.4 Default on Designated Senior Indebtedness .............................. 91
Section 14.5 Acceleration of Securities ............................................. 92
Section 14.6 When Distribution Must Be Paid Over .................................... 92
Section 14.7 Notice by Company ...................................................... 93
Section 14.8 Subrogation ............................................................ 93
Section 14.9 Relative Rights ........................................................ 93
Section 14.10 Subordination May Not Be Impaired by Company ........................... 94
Section 14.11 Distribution or Notice to Representative ............................... 94
Section 14.12 Rights of Trustee and Paying Agent ..................................... 94
Section 14.13 Authorization to Effect Subordination .................................. 95
Section 14.14 Amendments ............................................................. 95
Section 14.15 No Waiver of Subordination Provisions .................................. 95
ARTICLE XV
MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions ................................... 95
Section 15.2 Form of Documents Delivered to Trustee ................................. 96
Section 15.3 Acts of Holders ........................................................ 97
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors ............ 98
Section 15.5 Notice to Holders; Waiver .............................................. 98
Section 15.6 Effect of Headings and Table of Contents ............................... 99
Section 15.7 Successors and Assigns ................................................. 99
Section 15.8 Severability ........................................................... 99
Section 15.9 Benefits of Indenture .................................................. 99
Section 15.10 Governing Law; Trust Indenture Act Controls ............................ 99
Section 15.11 Legal Holidays ......................................................... 100
Section 15.12 No Recourse Against Others ............................................. 100
Section 15.13 Duplicate Originals .................................................... 100
Section 15.14 No Adverse Interpretation of Other Agreements .......................... 101
Exhibit A - Form of Legend for Global Securities
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Reconciliation and Tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 15, 1998
Trust Indenture Indenture
Act Section Section
Section 310 (a)(1) ................ 6.7
(a)(2) ................ 6.7
(b) ................... 6.7,6.8,6.9
Section 311 (a) ................... 6.12
(b) ................... 6.12
Section 312 ....................... 7.1
Section 313 ....................... 7.2
Section 314 (a) ................... 7.3
(a)(4) ................ 10.8(a)
(c)(l) ................ 15.1
(c)(2) ................ 15.1
(e) ................... 15.1
Section 315 (a) ................... 6.1
(b) ................... 6.13
(c) ................... 6.1
(d) ................... 6.1
Section 316 (a) (last
sentence).............. 1.1("Outstanding")
(a)(1)(A).............. 5.2,5.12
(a)(1)(B).............. 5.13
(b) ................... 5.8
(c) ................... 15.3(d)
Section 317 (a)(1) ................ 5.3
(a)(2) ................ 5.4
(b) ................... 10.3
Section 318 (a) ................... 15.10(b)
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
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THIS INDENTURE, dated as of January 15, 1998, is between KCS ENERGY,
INC., a Delaware corporation (hereinafter called the "Company"), the SUBSIDIARY
GUARANTORS (as defined hereinafter) and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 8 7/8%
Senior Subordinated Notes due 2008 (herein called the "Securities"), of
substantially the tenor and in the aggregate principal amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
The Company owns, directly or indirectly, all of the equity ownership
of the outstanding Voting Stock of each initial Subsidiary Guarantor, and each
initial Subsidiary Guarantor is a member of the Company's consolidated group of
companies that are engaged in related businesses. Each initial Subsidiary
Guarantor will derive direct and indirect benefit from the issuance of the
Securities; accordingly, each initial Subsidiary Guarantor has authorized its
guarantee of the Company's obligations under this Indenture and the Securities,
and to provide therefor the initial Subsidiary Guarantors have duly authorized
the execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done on the part of the Company and the
initial Subsidiary Guarantors to make the Securities, when issued and executed
by the Company and authenticated and delivered by the Trustee as herein
provided, the valid obligations of the Company, to make the Subsidiary
Guarantees, when the notations thereof on the Securities are executed by the
initial Subsidiary Guarantors, the valid obligation of the initial Subsidiary
Guarantors and to make this Indenture a valid agreement of the Company, the
initial Subsidiary Guarantors and the Trustee, in accordance with their
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities (together with the related Subsidiary Guarantees) by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities (together with the related Subsidiary
Guarantees), as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person becomes a Restricted Subsidiary or (b) assumed in connection
with acquisitions of Properties from such Person (other than any Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition). Acquired Indebtedness shall be
deemed to be incurred on the date the acquired Person becomes a Restricted
Subsidiary or the date of the related acquisition of Properties from such
Person.
"Act," when used with respect to any Holder, has the meaning specified in
Section 15.3.
"Additional Securities" has the meaning set forth in Section 2.3 hereof.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean the
amount by which the fair value of the Properties of such Subsidiary Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
its Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of this definition, beneficial ownership of 10% or more of the voting
common equity (on a fully diluted basis) or options or warrants to purchase such
equity (but only if exercisable at the date of determination or within 60 days
thereof) of a Person shall be deemed to constitute control of such Person.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition to any Person other than the Company or any of its Restricted
Subsidiaries (including, without limitation, by way of merger or consolidation)
(collectively, for purposes of this definition, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (a) any Capital Stock
of any Restricted Subsidiary held by the Company or any Restricted Subsidiary,
(b) all or substantially all of the Properties of any division or line of
business of the Company or any of its Restricted Subsidiaries or (c) any other
Properties of the Company or any of its Restricted Subsidiaries other than (i) a
transfer of cash, Cash Equivalents, hydrocarbons or other mineral products in
the ordinary course of business or (ii) any lease, abandonment, disposition,
relinquishment or farm-out of any oil and gas Property in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" also shall
not include (i) any transfer of
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Properties (including Capital Stock) which is governed by, and made in
accordance with, the provisions of Article VIII hereof; (ii) any transfer of
Properties to an Unrestricted Subsidiary, if permitted under Section 10.10
hereof; or (iii) any transfer of Properties (including Capital Stock) having a
Pair Market Value of less than $2,000,000.
"Average Life" means, with respect to any Indebtedness, as at any date of
determination, the quotient obtained by dividing (a) the sum of the products of
(i) the number of years (and any portion thereof) from the date of determination
to the date or dates of each successive scheduled principal payment (including,
without limitation, any sinking fund or mandatory redemption payment
requirements) of such Indebtedness multiplied by (ii) the amount of each such
principal payment by (b) the sum of all such principal payments.
"Bank Credit Facilities" means (i) that certain Credit Agreement dated
effective as of September 25, 1996, as amended, among KCS Resources, Inc., KCS
Pipeline Systems, Inc., KCS Michigan Resources, Inc., and KCS Energy Marketing,
Inc., as Borrowers, KCS Energy, Inc., as Guarantor, and Canadian Imperial Bank
of Commerce, New York Agency, as Agent, CIBC, Inc., as Collateral Agent, Bank
One, Texas, N.A., as Co-Agent, and NationsBank of Texas, N.A., as CoAgent, and
(ii) that certain Credit Agreement dated as of January 2, 1997, as amended,
among KCS Medallion Resources, Inc., KCS Energy, Inc., KCS Energy Services, Inc.
and Medallion Gas Services, Inc., as Borrowers, and Canadian Imperial Bank of
Commerce, New York Agency, as Agent, and CIBC, Inc., as Collateral Agent, in
each case as the same may be amended, modified, supplemented, extended,
restated, replaced, renewed or refinanced from time to time in one or more
credit agreements, loan agreements, instruments or similar agreements, as such
may be further amended, modified, supplemented, extended, restated, replaced,
renewed or refinanced.
"Board of Directors" means, with respect to the Company, either the board
of directors of the Company or any duly authorized committee of such board of
directors, and, with respect to any Subsidiary, either the board of directors of
such Subsidiary or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by its Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and with respect to a Subsidiary, a
copy of a resolution certified by the Secretary or an Assistant Secretary of
such Subsidiary to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means, as of any date, the aggregate amount of borrowing
availability as of such date under all Bank Credit Facilities that determine
availability on the basis of a borrowing base or other asset-based calculation.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York or
Hartford, Connecticut are authorized or obligated by law or executive order to
close.
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"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest in
such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any Property that is required to be classified and accounted for as a capital
lease obligation under GAAP, and, for the purpose of this Indenture, the amount
of such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) demand and time deposits and certificates of
deposit or acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of 180 days or less issued by a corporation
that is not an Affiliate of the Company and is organized under the laws of any
state of the United Stares or the District of Columbia and rated at least A-1 by
S&P or at least P-1 by Xxxxx'x; (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any commercial bank meeting the specifications of
clause (ii) above; (v) overnight bank deposits and bankers' acceptances at any
commercial bank meeting the qualifications specified in clause (ii) above; (vi)
deposits available for withdrawal on demand with any commercial bank not meeting
the qualifications specified in clause (ii) above but which is a lending bank
under any of the Bank Credit Facilities, provided all such deposits do not
exceed $5,000,000 in the aggregate at any one time; (vii) demand and time
deposits and certificates of deposit with any commercial bank organized in the
United States not meeting the qualifications specified in clause (ii) above,
provided that such deposits and certificates support bond, letter of credit and
other similar types of obligations incurred in the ordinary course of business;
and (viii) investments in money market or other mutual funds substantially all
of whose assets comprise securities of the types described in clauses (i)
through (v) above.
"Change of Control" means the occurrence of any event or series of
events by which (a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more
than 50% of the total Voting Stock of the Company; (b) the Company consolidates
with or merges into another Person or any Person consolidates with, or merges
into, the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other Property, other than any such transaction where (i) the
outstanding Voting Stock of the Company is changed into or exchanged for Voting
Stock of the surviving or resulting Person that is Qualified Capital Stock and
(ii) the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the
Voting Stock of the
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surviving or resulting Person immediately after such transaction; (c) the
Company, either individually or in conjunction with one or more Restricted
Subsidiaries, sells, assigns, conveys, transfers, leases or otherwise disposes
of, or the Restricted Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of, all or substantially all of the Properties of the Company
and the Restricted Subsidiaries, taken as a whole (either in one transaction or
a series of related transactions), including Capital Stock of the Restricted
Subsidiaries, to any Person (other than the Company or a Restricted Subsidiary);
(d) during any consecutive two-year period, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by a vote of a
two-thirds of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (e) the liquidation or
dissolution of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations thereunder issued by the
Internal Revenue Service.
"Commission" or "SEC" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding-up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA Coverage Ratio" means, for any period, the ratio
on a pro forma basis of (a) the sum of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated Non-cash
Charges deducted in computing Consolidated Net Income, in each case, for such
period, of the Company and its Restricted Subsidiaries on a consolidated basis,
all determined in accordance with GAAP, decreased (to the extent included in
determining Consolidated Net Income) by the sum of (x) the amount of deferred
revenues that are amortized during such period and are attributable to reserves
that are subject to Volumetric Production Payments and (y) amounts recorded in
accordance with GAAP as repayments of principal and interest pursuant to
Dollar-Denominated Production Payments, to (b) the sum of such Consolidated
Interest Expense for such period; provided, however, that (i) the Consolidated
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EBITDA Coverage Ratio shall be calculated on a pro forma basis on the
assumptions that (A) the Indebtedness to be incurred (and all other Indebtedness
incurred after the first day of such period of four full fiscal quarters
referred to in Section 10.12(a) hereof through and including the date of
determination), and (if applicable) the application of the net proceeds
therefrom (and from any other such Indebtedness), including to refinance other
Indebtedness, had been incurred on the first day of such four-quarter period
and, in the case of Acquired Indebtedness, on the assumption that the related
transaction (whether by means of purchase, merger or otherwise) also had
occurred on such date with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation and (B) any acquisition
or disposition by the Company or any Restricted Subsidiary of any Properties
outside the ordinary course of business, or any repayment of any principal
amount of any Indebtedness of the Company or any Restricted Subsidiary prior to
the Stated Maturity thereof, in either case since the first day of such period
of four full fiscal quarters through and including the date of determination,
had been consummated on such first day of such four-quarter period, (ii) in
making such computation, the Consolidated Interest Expense attributable to
interest on any Indebtedness required to be computed on a pro forma basis in
accordance with Section 10.12(a) hereof and (A) bearing a floating interest rate
shall be computed as if the rate in effect on the date of computation had been
the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying, at the option of the Company, either the fixed or floating
rate, (iii) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
required to be computed on a pro forma basis in accordance with Section 10.12(a)
hereof shall be computed based upon the average daily balance of such
Indebtedness during the applicable period, provided that such average daily
balance shall be reduced by the amount of any repayment of Indebtedness under a
revolving credit facility during the applicable period, which repayment
permanently reduced the commitments or amounts available to be reborrowed under
such facility, (iv) notwithstanding clauses (ii) and (iii) of this proviso,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Rate Protection
Obligations, shall be deemed to have accrued at the rate per annum resulting
after giving effect to the operation of such agreements, (v) in making such
calculation, Consolidated Interest Expense shall exclude interest attributable
to Dollar-Denominated Production Payments, and (vi) if after the first day of
the period referred to in clause (a) of this definition the Company has
permanently retired any Indebtedness out of the Net Cash Proceeds of the
Issuance and sale of shares of Qualified Capital Stock of the Company within 30
days of such issuance and sale, Consolidated Interest Expense shall be
calculated on a pro forma basis as if such Indebtedness had been retired on the
first day of such period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes (including state franchise
taxes accounted for as income taxes in accordance with GAAP) of the Company and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, (i) the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation,
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(A) any amortization of debt discount, (B) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (C) the
interest portion of any deferred payment obligation constituting Indebtedness,
(D) all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and (E) all accrued
interest, in each case to the extent attributable to such period, (b) to the
extent any Indebtedness of any Person (other than the Company or a Restricted
Subsidiary) is guaranteed by the Company or any Restricted Subsidiary, the
aggregate amount of interest paid (to the extent not accrued in a prior period)
or accrued by such other Person during such period attributable to any such
Indebtedness, in each case to the extent attributable to that period, (c) the
aggregate amount of the interest component of Capitalized Lease Obligations paid
(to the extent not accrued in a prior period), accrued or scheduled to be paid
or accrued by the Company and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP and (d) the aggregate
amount of dividends paid (to the extent not accrued in a prior period) or
accrued on Disqualified Capital Stock or Preferred Stock of the Company and its
Restricted Subsidiaries, to the extent such Disqualified Capital Stock or
Preferred Stock is owned by Persons other than the Company or its Restricted
Subsidiaries, less (ii) to the extent included in clause (i), amortization of
capitalized debt issuance costs of the Company and its Restricted Subsidiaries
during such period.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted by excluding (a) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto), (b)
net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (c) the net income (or net loss) of any Person
(other than the Company or any of its Restricted Subsidiaries), in which the
Company or any of its Restricted Subsidiaries has an ownership interest, except
to the extent of the amount of dividends or other distributions actually paid to
the Company or any of its Restricted Subsidiaries in cash by such other Person
during such period (regardless of whether such cash dividends or distributions
is attributable to net income (or net loss) of such Person during such period or
during any prior period), (d) net income (or net loss) of any Person combined
with the Company or any of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(e) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, (1) income
resulting from transfers of assets received by the Company or any Restricted
Subsidiary from an Unrestricted Subsidiary and (g) any write-downs of
non-current assets, provided, however, that any ceiling limitation writedowns
under Commission guidelines shall be treated as capitalized costs, as if such
writedowns had not occurred.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Company less the amount of such stockholders' equity
attributable to Disqualified Capital Stock or treasury stock of the Company and
its Restricted Subsidiaries, as determined in accordance with GAAP.
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22
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, depletion, amortization and other non-cash expenses of the Company
and its Restricted Subsidiaries reducing Consolidated Net Income for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such non-cash charge for which an accrual of or reserve for cash charges for
any future period is required).
"Corporate Trust Office" means the office of the Trustee at which at
any particular time the trust created by this Indenture is administered, which
office at the date of execution of this Indenture is located at Xxxxxxx Square,
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
"Default" means any event, act or condition that is, or after notice or
passage of time or both would become, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.8 hereof.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) any Senior Indebtedness
under or in respect of any of the Bank Credit Facilities and the Senior Notes
and (ii) any other Senior Indebtedness permitted under Section 10.12(a) hereof
the principal amount of which is $5,000,000 or more and, in the case of this
clause (ii), that has been designated by the Company in an Officers' Certificate
delivered to the Trustee as "Designated Senior Indebtedness."
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors of the Company
is required to deliver a Board Resolution hereunder, a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest (other than an interest arising solely from the beneficial
ownership of Capital Stock of the Company) in or with respect to such
transaction or series of transactions.
"Disqualified Capital Stock" means any Capital Stock that, either by
its terms, by the terms of any security into which it is convertible or
exchangeable or by contract or otherwise, is, or upon the happening of an event
or passage of time would be, required to be redeemed or repurchased prior to the
final Stated Maturity of the Securities or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity. For purposes of Section 10.12(a) hereof, Disqualified
Capital Stock shall be valued at the greater of its voluntary or involuntary
maximum fixed redemption or repurchase price plus accrued and unpaid dividends.
For such purposes, the "maximum fixed redemption or repurchase price" of any
Disqualified Capital Stock which does not have a fixed redemption or repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were redeemed or repurchased
on the date of determination, and if such price is based upon, or measured by,
the fair market value of such Disqualified Capital Stock, such fair market value
shall be determined in good faith by the board of directors of the issuer of
such Disqualified Capital
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Stock; provided, however, that if such Disqualified Capital Stock is not at the
date of determination permitted or required to be redeemed or repurchased, the
"maximum fixed redemption or repurchase price" shall be the book value of such
Disqualified Capital Stock.
"Dollar-Denominated Production Payments" means production payment
obligations of the Company or any Restricted Subsidiary recorded as liabilities
in accordance with GAAP, together with all undertakings and obligations in
connection therewith.
"Event of Default" has the meaning specified in Section 5.1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Fair Market Value" means the fair market value of a Property
(including shares of Capital Stock) as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution, which
determination shall be conclusive for purposes of this Indenture; provided,
however, that unless otherwise specified herein, the Board of Directors shall be
under no obligation to obtain any valuation or assessment from any investment
banker, appraiser or other third party.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States of America, which are
applicable as of the date of this Indenture.
The term "guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments or documents for
collection in the ordinary course of business), direct or indirect, in any
manner, of any part or all of such obligation and (ii) an agreement, direct or
indirect, contingent or otherwise, the practical effect of which is to assure in
any way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down under letters of
credit. When used as a verb, "guarantee" has a corresponding meaning.
"Holder" means a Person in whose name a Security is registered in a
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person, contingent or otherwise, for borrowed money
or for the deferred purchase price of Property or services (excluding any trade
accounts payable and other accrued current liabilities incurred in the ordinary
course of business) and all liabilities of such Person incurred in
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connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock outstanding on the date of this
Indenture or thereafter, if, and to the extent, any of the foregoing would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, (b) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, if, and to the extent, any of the
foregoing would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, (c) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all Capitalized Lease
Obligations of such Person, (e) all Indebtedness referred to in the preceding
clauses of other Persons and all dividends of other Persons, the payment of
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon
Property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such Property or the amount of the obligation so
secured), (f) all guarantees by such Person of Indebtedness referred to in this
definition (including, with respect to any Production Payment, any warranties or
guaranties of production or payment by such Person with respect to such
Production Payment but excluding other contractual obligations of such Person
with respect to such Production Payment), and (g) all obligations of such Person
under or in respect of currency exchange contracts, oil and natural gas price
hedging arrangements and Interest Rate Protection Obligations. Subject to clause
(f) of the first sentence of this definition, neither Dollar-Denominated
Production Payments nor Volumetric Production Payments shall be deemed to be
Indebtedness. In addition, Disqualified Capital Stock shall not be deemed to be
Indebtedness.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"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 Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to
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receive from time to time periodic payments calculated by applying either a
floating or a fixed rate of interest on a stated notional amount in exchange for
periodic payments made by such Person calculated by applying a fixed or a
floating rate of interest on the same notional amount and shall include, without
limitation, interest rate swaps, caps, floors, collars and similar agreements or
arrangements designed to protect against or manage such Person's and any of its
Subsidiaries' exposure to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee of Indebtedness or other extension of credit or capital
contribution to (by means of any transfer of cash or other Property to others or
any payment for Property or services for the account or use of others), or any
purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities (including derivatives) or evidences of
Indebtedness issued by, any other Person. In addition, the Fair Market Value of
the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary shall be deemed to be an
"Investment" made by the Company in such Unrestricted Subsidiary at such time.
"Investments" shall exclude (a) extensions of trade credit or other advances to
customers on commercially reasonable terms in accordance with normal trade
practices or otherwise in the ordinary course of business, (b) Interest Rate
Protection Obligations entered into in the ordinary course of business or as
required by any Permitted Indebtedness or any other Indebtedness incurred in
compliance with Section 10.12 hereof, but only to the extent that the stated
aggregate notional amounts of such Interest Rate Protection Obligations do not
exceed 105% of the aggregate principal amount of such Indebtedness to which such
Interest Rate Protection Obligations relate and (c) endorsements of negotiable
instruments and documents in the ordinary course of business.
"Issue Date" means the first date on which the Original Securities were
issued hereunder.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim or similar type
of encumbrance (including, without limitation, any agreement to give or grant
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.
"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such
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26
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary), net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of legal counsel, accountants and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the
Property subject to the Asset Sale or having a Lien thereon and (iv) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP consistently applied
against any liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee; provided,
however, that any amounts remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net Available Proceeds.
"Net Cash Proceeds," with respect to any issuance or sale of Qualified
Capital Stock or other securities, means the cash proceeds of such issuance or
sale net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
and expenses actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result thereof.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company or any Restricted Subsidiary incurred in connection
with the acquisition by the Company or such Restricted Subsidiary of any
Property and as to which (a) the holders of such Indebtedness agree that they
will look solely to the Property so acquired and securing such Indebtedness for
payment on or in respect of such Indebtedness, and neither the Company nor any
Subsidiary (other than an Unrestricted Subsidiary) (i) provides credit support,
including any undertaking, agreement or instrument which would constitute
Indebtedness or (ii) is directly or indirectly liable for such Indebtedness, and
(b) no default with respect to such Indebtedness would permit (after notice or
passage of time or both), according to the terms thereof, any holder of any
Indebtedness of the Company or a Restricted Subsidiary to declare a default on
such Indebtedness or cause the payment thereof to be accelerated or payable
prior to its Stated Maturity.
"Officers" means, with respect to any Person, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer and the
Treasurer of such Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Oil and Gas Business" means (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon Properties, (ii) the gathering, marketing, treating, processing,
storage, refining, selling and transporting of any production from such
interests or Properties, (iii) any business relating to or arising from
exploration for or development, production, treatment, processing, storage,
refining, transportation or marketing of
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oil, gas and other minerals and products produced in association therewith and
(iv) any activity necessary, appropriate or incidental to the activities
described in the foregoing clauses (i) through (iii) of this definition.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (or any Subsidiary Guarantor), including an employee of
the Company (or any Subsidiary Guarantor), and who shall be reasonably
acceptable to the Trustee.
"Original Securities" has the meaning set forth in Section 2.3 hereof.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
12.2 and 12.3 hereof, with respect to which the Company has effected
legal defeasance or covenant defeasance as provided in Article XII
hereof; and
(iv) Securities which have been paid pursuant to Section 3.7
hereof or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such securities are held
by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Subsidiary Guarantor or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, consent, notice or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, any
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Subsidiary Guarantor or any other obligor upon the Securities or any Affiliate
of the Company, any Subsidiary Guarantor or such other obligor.
"Pari Passu Indebtedness" means (i) Indebtedness of the Company that
ranks pari passu in right of payment to the Securities and (ii) Indebtedness of
any Restricted Subsidiary that ranks pari passu in right of payment to the
Subsidiary Guarantees.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest on any Securities on behalf of the Company.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness under the Bank Credit Facilities in an
aggregate principal amount at any one time outstanding not to exceed
the greater of $165,000,000 million or the Borrowing Base (the "Maximum
Credit Amount"), plus all interest and fees under such facilities and
any guarantee of any such Indebtedness;
(ii) Indebtedness under the Original Securities;
(iii) Indebtedness outstanding or in effect on the date of
this Indenture (and not repaid or defeased with the proceeds of the
offering of the Securities);
(iv) obligations pursuant to Interest Rate Protection
Obligations, but only to the extent such obligations do not exceed 105%
of the aggregate principal amount of the Indebtedness covered by such
Interest Rate Protection Obligations; obligations under currency
exchange contracts entered into in the ordinary course of business;
hedging arrangements entered into in the ordinary course of business
for the purpose of protecting production, purchases and resales against
fluctuations in oil or natural gas prices; and any guarantee of any of
the foregoing;
(v) the Subsidiary Guarantees of the Securities (and any
assumption of the obligations guarantees thereby);
(vi) Indebtedness of the Company to any Restricted Subsidiary,
and Indebtedness of any Restricted Subsidiary to the Company or any
other Restricted Subsidiary;
(vii) Permitted Refinancing Indebtedness and any guarantee
thereof;
(viii) Non-Recourse Indebtedness;
(ix) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted
Subsidiary in the ordinary course of business,
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including guaranties and letters of credit supporting such bid,
performance or surety obligations (in each case other than for an
obligation for money borrowed); and
(x) any additional Indebtedness in an aggregate principal
amount not in excess of $25,000,000 at any one time outstanding and any
guarantee thereof.
"Permitted Investments" means any of the following: (i) Investments in
Cash Equivalents; (ii) Investments in the Company or any of its Restricted
Subsidiaries; (iii) Investments in an amount not to exceed $10,000,000 at any
one time outstanding; (iv) Investments by the Company or any of its Restricted
Subsidiaries in another Person, if as a result of such Investment (A) such other
Person becomes a Restricted Subsidiary or (B) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its Properties to, the Company or a Restricted Subsidiary; (v) entry into
operating agreements, joint ventures, partnership agreements, working
interests, royalty interests, mineral leases, processing agreements, farm-out
agreements, contracts for the sale, transportation or exchange of oil and
natural gas, unitization agreements, pooling arrangements, area of mutual
interest agreements or other similar or customary agreements, transactions,
Properties, interests or arrangements, and Investments and expenditures in
connection therewith or pursuant thereto, in each case made or entered into in
the ordinary course of the Oil and Gas Business, excluding, however, Investments
in corporations; (vi) entry into any hedging arrangements in the ordinary course
of business for the purpose of protecting the Company's or any Restricted
Subsidiary's production, purchases and resales against fluctuations in oil or
natural gas prices; (vii) Investments permitted under Section 10.17 or 10.18
hereof; (viii) entry into any currency exchange contract in the ordinary course
of business; or (ix) Investments in stock, obligations or securities received in
settlement of debts owing to the Company or any Restricted Subsidiary as a
result of bankruptcy or insolvency proceedings or upon the foreclosure,
perfection or enforcement of any Lien in favor of the Company or a Restricted
Subsidiary, in each case as to debt owing to the Company or a Restricted
Subsidiary that arose in the ordinary course of business of the Company or any
such Restricted Subsidiary.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of this Indenture (except to
the extent such Liens secure Indebtedness that is repaid or defeased
with proceeds of the offering of the Securities);
(b) Liens securing the Securities or the Subsidiary
Guarantees;
(c) Liens in favor of the Company or any Restricted
Subsidiary;
(d) Liens securing Senior Indebtedness permitted under Section
10.12(a) hereof;
(e) Liens for taxes, assessments and governmental charges or
claims either
(i) not delinquent or
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(ii) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves
as may be required pursuant to GAAP;
(f) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by GAAP
shall have been made in respect thereof;
(g) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the payment
or performance of tenders, statutory or regulatory obligations, surety
and appeal bonds, bids, government contracts and leases, performance
and return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money but including lessee or
operator obligations under statutes, governmental regulations or
instruments related to the ownership, exploration and production of
oil, gas and minerals on state, federal or foreign lands or waters);
(h) judgment and attachment Liens not giving rise to an Event
of Default so long as any appropriate legal proceedings which may have
been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceeding may be
initiated shall not have expired;
(i) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with
the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries;
(j) any interest or title of a lessor under any Capitalized
Lease Obligation or operating lease;
(k) purchase money Liens; provided, however, that (i) the
related purchase money Indebtedness shall not be secured by any
Property of the Company or any Restricted Subsidiary other than the
Property so acquired (including, without limitation, Property acquired
indirectly through the acquisition of stock or other ownership
interests) and the proceeds thereof and (ii) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(l) Liens securing obligations under hedging agreements that
the Company or any Restricted Subsidiary enters into in the ordinary
course of business for the purpose of protecting its production,
purchases and resales against fluctuations in oil or natural gas
prices;
(m) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or
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created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;
(n) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
Property relating to such letters of credit and products and proceeds
thereof;
(o) Liens encumbering Property under construction arising from
progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such Property;
(p) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
(q) Liens securing Interest Rate Protection Obligations which
Interest Rate Protection Obligations relate to Indebtedness that is
secured by Liens otherwise permitted under this Indenture;
(r) Liens on, or related to, Properties to secure all or part
of the costs incurred in the ordinary course of business for the
exploration, drilling, development or operation thereof;
(s) Liens on pipeline or pipeline facilities which arise by
operation of law;
(t) Liens arising under operating agreements, joint venture
agreements, partnership agreements, oil and gas leases, farm-out
agreements, division orders, contracts for the sale, transportation or
exchange of oil and natural gas, unitization and pooling declarations
and agreements, area of mutual interest agreements and other agreements
which are customary in the Oil and Gas Business;
(u) Liens reserved in oil and gas mineral leases for bonus or
rental payments or for compliance with the terms of such leases;
(v) Liens constituting survey exceptions, encumbrances,
easements or reservations of, or rights to others for, rights-of-way,
zoning or other restrictions as to the use of real properties, and
minor defects of title which, in the case of any of the foregoing, were
not incurred or created to secure the payment of borrowed money or the
deferred purchase price of Property or services, and in the aggregate
do not materially adversely affect the value of the Properties of the
Company and the Restricted Subsidiaries, taken as a whole, or
materially impair the use of such Properties for the purposes of which
such Properties are held by the Company or any Restricted Subsidiaries;
(w) Liens securing Non-Recourse Indebtedness; provided,
however, that the related Non-Recourse Indebtedness shall not be
secured by any Property of the Company
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or any Restricted Subsidiary other than the Property acquired
(including, without limitation, Property acquired indirectly through
the acquisition of stock or other ownership interests) by the Company
or any Restricted Subsidiary with the proceeds of such Non-Recourse
Indebtedness; and
(x) Liens resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness of the
Company or any of its Restricted Subsidiaries.
Notwithstanding anything in clauses (a) through (x) of this definition, the term
"Permitted Liens" shall not include any Liens resulting from the creation,
incurrence, issuance, assumption or guarantee of any Production Payments other
than Production Payments that are created, incurred, issued, assumed or
guaranteed in connection with the financing of, and within 30 days after, the
acquisition of the Properties that are subject thereto.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company
or a Restricted Subsidiary, the net proceeds of which are used to renew, extend,
refinance, refund or repurchase (including, without limitation, pursuant to a
Change of Control Offer or Net Proceeds Offer) outstanding Indebtedness of the
Company or any Restricted Subsidiary, provided that (a) if the Indebtedness
(including the Securities) being renewed, extended, refinanced, refunded or
repurchased is pari passu with or subordinated in right of payment to either the
Securities or the Subsidiary Guarantees, then such Indebtedness is pari passu
with or subordinated in right of payment to the Securities or the Subsidiary
Guarantees, as the case may be, at least to the same extent as the Indebtedness
being renewed, extended, refinanced, refunded or repurchased, (b) such
Indebtedness has a Stated Maturity for its final scheduled principal payment
that is no earlier than the Stated Maturity for the final scheduled principal
payment of the Indebtedness being renewed, extended, refinanced, refunded or
repurchased and (c) such Indebtedness has an Average Life at the time such
Indebtedness is incurred that is equal to or greater than the Average Life of
the Indebtedness being renewed, extended, refinanced, refunded or repurchased;
provided, further, that such Indebtedness is in an aggregate principal amount
(or, if such Indebtedness is issued at a price less than the principal amount
thereof, the aggregate amount of gross proceeds therefrom is) not in excess of
the aggregate principal amount then outstanding of the Indebtedness being
renewed, extended, refinanced, refunded or repurchased (or if the Indebtedness
being renewed, extended, refinanced, refunded or repurchased was issued at a
price less than the principal amount thereof, then not in excess of the amount
of liability in respect thereof determined in accordance with GAAP) plus the
amount of any premium required to be paid in connection with such renewal,
extension, refinancing, refunding or repurchase pursuant to the terms of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased or the
amount of any premium reasonably determined by the Company as necessary to
accomplish such renewal, extension, refinancing, refunding or repurchase, plus
the amount of reasonable fees and expenses incurred by the Company or such
Restricted Subsidiary in connection therewith.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.7 hereof in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Public Equity Offering" means an offer and sale of Common Stock of the
Company pursuant to a registration statement that has been declared effective by
the Commission pursuant to the Securities Act (other than a registration
statement on Form S-8 or otherwise relating to equity securities issuable under
any employee benefit plan of the Company).
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such Person other than Disqualified Capital Stock.
"Record Date" means a Regular Record Date or a Special Record Date.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Office, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
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"Restricted Investment" means (without duplication) (i) the designation
of a Subsidiary as an Unrestricted Subsidiary in the manner described in the
definition of "Unrestricted Subsidiary" and (ii) any Investment other than a
Permitted Investment.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary of the
Company is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of this Indenture.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor act thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5 hereof.
"Senior Indebtedness" means (i) Indebtedness or other obligations under
or in respect of any of the Bank Credit Facilities, (ii) Indebtedness under or
in respect of the Senior Notes, (iii) any other Indebtedness permitted to be
incurred by the Company or any Restricted Subsidiary under the terms of Section
10.12(a) hereof, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities or the Subsidiary Guarantees, as the case may be, (iv)
all interest, fees and other obligations in respect of any Indebtedness referred
to in the foregoing clauses (i) through (iii) and (v) any amounts due to the
Trustee under the Indenture as fees, expenses or indemnities and other amounts.
"Senior Notes" means the 11% Senior Notes due 2003, Series B of the
Company issued in an original aggregate principal amount of $150,000,000
pursuant to the Indenture dated as of January 15, 1996 between the Company and
State Street Bank and Trust Company, as successor Trustee.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8 hereof.
"Stated Maturity" means, when used with respect to any Indebtedness or
any installment of interest thereon, means the date specified in the instrument
evidencing or governing such Indebtedness as the fixed date an which the
principal of such Indebtedness or such installment of interest is due and
payable.
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"Subordinated Indebtedness" means Indebtedness of the Company or a
Subsidiary Guarantor which is expressly subordinated in right of payment to the
Securities or the Subsidiary Guarantees, as the case may be.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
"Subsidiary Guarantee" has the meaning specified in Section 13.1
hereof.
"Subsidiary Guarantor" means (i) KCS Resources, Inc., a Delaware
corporation, (ii) KCS Michigan Resources, Inc., a Delaware corporation, (iii)
KCS Energy Marketing, Inc., a New Jersey corporation, (iv) KCS Medallion
Resources, Inc., a Delaware corporation, (v) KCS Energy Services, Inc., a
Delaware corporation, (vi) Medallion California Properties Co., a Texas
corporation, (vii) Medallion Gas Services, Inc., an Oklahoma corporation, (viii)
National Enerdrill Corporation, a New Jersey corporation, (ix) Proliq, Inc., a
New Jersey corporation, (x) each of the Company's other Restricted Subsidiaries,
if any, executing a supplemental indenture in compliance with the provisions of
Section 10.13(a) hereof and (xi) any Person that becomes a successor guarantor
of the Securities in compliance with the provisions of Section 13.2 hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was executed,
except as provided in Section 9.5 hereof.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination will be designated an Unrestricted Subsidiary by
the Board of Directors of the Company as provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary of the Company as an Unrestricted Subsidiary so long as
(a) neither the Company nor any Restricted Subsidiary is directly or indirectly
liable pursuant to the terms of any Indebtedness of such Subsidiary; (b) no
default with respect to any Indebtedness of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity; (c) such designation as an Unrestricted Subsidiary would be
permitted under Section 10.10 hereof; and (d) such designation shall not result
in the creation or imposition of any Lien on any of the Properties of the
Company or any Restricted Subsidiary
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(other than any Permitted Lien or any Lien the creation or imposition of which
shall have been in compliance with Section 10.15 hereof); provided, however,
that with respect to clause (a), the Company or a Restricted Subsidiary may be
liable for Indebtedness of an Unrestricted Subsidiary if (x) such liability
constituted a Permitted Investment or a Restricted Payment permitted by Section
10.10 hereof, in each case at the time of incurrence, or (y) the liability would
be a Permitted Investment at the time of designation of such Subsidiary as an
Unrestricted Subsidiary. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing a Board Resolution with the
Trustee giving effect to such designation. The Board of Directors of the Company
may designate any Unrestricted Subsidiary as a Restricted Subsidiary if,
immediately after giving effect to such designation, on a pro forma basis (i) no
Default or Event of Default shall have occurred and be continuing, (ii) the
Company could incur $1.00 of additional Indebtedness (not including the
incurrence of Permitted Indebtedness) under Section 10.12(a) hereof and (iii) if
any of the Properties of the Company or any of its Restricted Subsidiaries would
upon such designation become subject to any Lien (other than a Permitted Lien),
the creation or imposition of such Lien shall have been in compliance with
Section 10.15 hereof.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Volumetric Production Payments" means production payment obligations
of the Company or a Restricted Subsidiary recorded as deferred revenue in
accordance with GAAP, together with all undertakings and obligations in
connection therewith.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
Section 1.2 Other Definitions.
Defined
Term in Section
---- ----------
"Agent Members" ....................... 3.6
"Bankruptcy Law" ...................... 14.2
"Change of Control Notice" ............ 10.16(c)
"Change of Control Offer" ............. 10.16(a)
"Change of Control Purchase Date" ..... 10.16(c)
"Change of Control Purchase Price" .... 10.16(a)
"Defaulted Interest" .................. 3.8
"Excess Proceeds" ..................... 10.17(b)
"Funding Guarantor" ................... 13.5
"Global Security" ..................... 2.1
"Net Proceeds Deficiency" ............. 10.17(c)
"Net Proceeds Offer" .................. 10.17(c)
"Net Proceeds Payment Date" ........... 10.17(c)
"Obligations" ......................... 14.2
"Offered Price" ....................... 10.17(c)
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"Payment Amount" ...................... 10.17(c)
"Payment Blockage Notice" ............. 14.4
"Payment Restriction" ................. 10.19
"Physical Securities".................. 2.1
"Purchase Notice" ..................... 10.17(c)
"Representative" ...................... 14.2
"Restricted Payment" .................. l0.10(a)
"Surviving Entity ..................... 8.1(a)
"Trigger Date" ........................ 10.17(c)
"U.S.Government Obligations" .......... 12.4(a)
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities,
"Indenture security holder" means a Holder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the
Trustee, and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
Section 1.4 Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP and all accounting calculations will be
determined in accordance with GAAP;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
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(d) the masculine gender includes the feminine and the neuter;
(e) a "day" means a calendar day;
(f) the term "merger" includes a statutory share exchange and the term
"merged" has a correlative meaning;
(g) provisions apply to successive events and transactions; and
(h) references to agreements and other instruments include subsequent
amendments and waivers but only to the extent not prohibited by this Indenture.
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.
The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities or notations of Subsidiary Guarantees,
as the case may be, as evidenced by their execution of such Securities or
notations of Subsidiary Guarantees, as the case may be.
Unless issued as Physical Securities, Securities (including the
notations thereon relating to the Subsidiary Guarantees and the Trustee's
certificate of authentication) shall be issued in the form of one or more
permanent global Securities substantially in the form set forth in Sections 2.2
through 2.5 hereof (each being herein called a "Global Security") deposited with
the Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, and each shall bear the
legend set forth on Exhibit A hereto. Subject to the limitation set forth in
Section 3.1, the principal amounts of the Global Securities may be increased or
decreased from time to time by adjustments made on the records of the Trustee,
as custodian for the Depository, as hereinafter provided.
Securities (including the notations thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication) also may be issued
in the form of permanent certificated securities in registered form in
substantially the form set forth in Sections 2.2 through 2.5 hereto ("Physical
Securities").
The Securities, the notations thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication shall be in
substantially the form 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 by this Section or to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities or notations of Subsidiary Guarantees, as
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the case may be, as evidenced by their execution of the Securities or notations
of Subsidiary Guarantees, as the case may be. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security. In addition to the requirements of Section
2.3, the Securities may also have set forth on the reverse side thereof a form
of assignment and forms to elect purchase by the Company pursuant to Section
10.16 or 10.17 hereof.
Section 2.2 Form of Face of Security.
KCS ENERGY, INC.
8 7/8% Senior Subordinated Note due 2008
No. $
----- --------
CUSIP No.
--------
KCS Energy, Inc., 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 January 15, 2008,
at the office or agency of the Company referred to below, and to pay interest
thereon, commencing on July 15, 1998 and continuing semiannually thereafter, on
January 15 and July 15 in each year, from January 21, 1998, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rare of 8 7/8% per annum, until the principal hereof is paid or duly
provided for, and (to the extent lawful) to pay on demand interest on any
overdue interest at the rate borne by the Securities from the date on which such
overdue interest becomes payable to the date payment of such interest has been
made or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered on the Security Register at the close of business on
the Regular Record Date for such interest, which shall be the January 1 or July
1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date, and such Defaulted Interest, and (to the extent lawful) interest on such
Defaulted Interest at the rate borne by the Securities, may be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal
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tender for payment of public and private debts; provided, however, that payment
of interest may be made on Physical Securities at the option of the Company on
or before the due date (i) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register or (ii) with
respect to any Holder owning Securities in the principal amount of $500,000 or
more, by wire transfer to an account maintained by the Holder located in the
United States, as specified in a written notice to the Trustee by any such
Holder requesting payment by wire transfer and specifying the account to which
transfer is requested.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
KCS ENERGY, INC.
By:
-----------------------------
President
Attest:
-----------------------------
Secretary
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 7/8% Senior Subordinated Notes due 2008 (herein
called the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $125,000,000 issued on the
Issue Date (the "Original Securities") and an additional $25,000,000 principal
amount issuable thereafter (the "Additional Securities"), which may be issued
under an indenture (herein called the "Indenture") dated as of January 15, 1998
between the Company, the initial Subsidiary Guarantors named therein and State
Street Bank and Trust Company (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Subsidiary Guarantors, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
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The payment of principal of, premium, if any, and interest on, the
Securities and any other payment obligations of the Company in respect of the
Securities (including any obligation to repurchase the Securities) is
subordinated in certain circumstances in right of payment, as set forth in the
Indenture, to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding on the date of the Indenture or thereafter
incurred.
The Securities are subject to redemption, at the option of the Company,
in whole or in part, at any time on or after January 15, 2003, upon not less
than 30 or more than 60 days' notice at the following Redemption Prices
(expressed as percentages of principal amount) set forth below if redeemed
during the 12-month period beginning January 15 of the years indicated below:
Redemption
Year Price
---- ----------
2003 ....................... 104.438%
2004 ....................... 102.958%
2005 ....................... 101.479%
2006 and thereafter ........ 100.00%
together in the case of any such redemption with accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), all as provided in the Indenture.
Notwithstanding the foregoing, at any time on or prior to January 15,
2001, up to 33 1/3% of the aggregate principal amount of Original Securities
originally issued and Additional Securities originally issued may be redeemed,
at the option of the Company, upon not less than 30 or more than 60 days'
notice, from the Net Cash Proceeds of a Public Equity Offering, at a Redemption
Price equal to 108.875% of the principal amount thereof, together with accrued
and unpaid interest to the Redemption Date, provided that at least 66 2/3% of
the aggregate principal amount of Original Securities originally issued and
Additional Securities originally issued remains Outstanding immediately after
such redemption and that such redemption occurs within 60 days following the
closing of such Public Equity Offering.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date. In the event of redemption or purchase of
this Security in part only, a new Security or Securities for the unredeemed or
unpurchased portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
The Securities do not have the benefit of any sinking fund obligations.
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In the event of a Change of Control of the Company, and subject to
certain conditions and limitations provided in the Indenture, the Company will
be obligated to make an offer to purchase, on a Business Day not more than 60 or
less than 30 days following the occurrence of a Change of Control of the
Company, all of the then Outstanding Securities at a purchase price equal to
101% of the principal amount thereof, together with accrued and unpaid interest,
if any, to the Change of Control Purchase Date, all as provided in the
Indenture.
In the event of Asset Sales, under certain circumstances, the Company
will be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Securities at a purchase price equal to 100% of the
principal amount of the Securities, together with accrued and unpaid interest,
if any, to the Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (i)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer); (ii) default for
30 days in payment of interest on any of the Securities; (iii) default in the
performance of agreements relating to mergers, consolidations and sales of all
or substantially all assets or the failure to make or consummate a Change of
Control Offer or a Net Proceeds Offer; (iv) failure for 60 days after notice to
comply with any other covenants in the Indenture, any Subsidiary Guarantee or
the Securities; (v) certain payment defaults under, and the acceleration prior
to the maturity of, certain Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount in excess of $5,000,000; (vi) the
failure of any Subsidiary Guarantee to be in full force and effect (except as
permitted by the Indenture); (vii) certain final judgments or orders against the
Company or any Restricted Subsidiary in an aggregate amount of more than
$5,000,000 over the coverage under applicable insurance policies which remain
unsatisfied and either become subject to commencement of enforcement proceedings
or remain unstayed for a period of 60 days; and (viii) certain events of
bankruptcy, insolvency or reorganization of the Company or any Restricted
Subsidiary. If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in aggregate principal amount of the Outstanding
Securities may declare the principal amount of all the Securities to be due and
payable immediately, except that (i) in the case of an Event of Default arising
from certain events of bankruptcy, insolvency or reorganization of the Company
or any Restricted Subsidiary, the principal amount of the Securities will become
due and payable immediately without further action or notice, and (ii) in the
case of an Event of Default which relates to certain payment defaults or the
acceleration with respect to certain Indebtedness, any such Event of Default and
any consequential acceleration of the Securities will be automatically rescinded
if any such Indebtedness is repaid or if the default relating to such
Indebtedness is cured or waived and if the holders thereof have accelerated such
Indebtedness then such holders have rescinded their declaration of acceleration.
No Holder may pursue any remedy under the Indenture unless the Trustee shall
have failed to act after notice from such Holder of an Event of Default and
written request by Holders of at least 25% in aggregate principal amount of the
Outstanding Securities, and the offer to the Trustee of indemnity reasonably
satisfactory to it; however, such provision does not affect the right to xxx for
enforcement of any overdue payment on a Security by the Holder thereof. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default
(except default in payment
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of principal, premium or interest) if it determines in good faith that
withholding the notice is in the interest of the Holders. The Company is
required to file annual and quarterly reports with the Trustee as to the absence
or existence of defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Security 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 Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
with the consent of the Holders of a majority In aggregate principal amount of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security. Without the consent of any Holder, the
Company, the Subsidiary Guarantors and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, defect or inconsistency, to
qualify or maintain the qualification of the Indenture under the Trust Indenture
Act, to add or release any Subsidiary Guarantor pursuant to the Indenture and to
make certain other specified changes and other changes that do not materially
adversely affect the interests of any Holder in any material respect.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount
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of Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
A director, officer, employee, incorporator, stockholder or Affiliate
of the Company or any Subsidiary Guarantor, as such, past, present or future
shall not have any personal liability under this Security or any other Security
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 or any Subsidiary Guarantor under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder, by accepting this Security with the
notation of Subsidiary Guarantee endorsed hereon, waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of this Security with the notation of Subsidiary Guarantee endorsed
hereon.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this Security
is overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor
any agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. The Company will
furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to the Company at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000, Attention: Treasurer (or such other address as the Company may
have furnished in writing to the Trustee).
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders thereof. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identifying information
printed hereon.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
This Security shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of law principles.
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45
Section 2.4 Form of Notation Relating to Subsidiary Guarantees.
The form of notation to be set forth on each Security relating to the
Subsidiary Guarantees shall be in substantially the following form:
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary (Guarantors (as
defined in the Indenture referred to in the Security upon which this notation is
endorsed and each being hereinafter referred to as a "Subsidiary Guarantor,"
which term includes any additional or successor Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a) the due
and punctual payment of the principal (and premium, if any) of and interest on
the Securities, whether at maturity, acceleration, redemption or otherwise, (b)
the due and punctual payment of interest on the overdue principal of and
interest on the Securities, if any, to the extent lawful, (c) the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in the Indenture, and
(d) in case of any extension of time of payment or renewal of any Securities or
any of such other obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee shall be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the Adjusted Net Assets of each Subsidiary Guarantor.
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee are subordinated in right of payment to the Senior Indebtedness of
such Subsidiary Guarantor to the same extent and in the same manner as the
Securities are subordinated in right of payment to Senior Indebtedness of the
Company.
No stockholder, officer, director, employee, incorporator or Affiliate
as such, past, present or future, of any Subsidiary Guarantor shall have any
personal liability under its Subsidiary Guarantee by reason of his or its status
as such stockholder, officer, director, employee, incorporator or Affiliate, or
any liability for any obligations of any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation.
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Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Security upon which this notation
of Subsidiary Guarantees is endorsed shall have the meanings assigned to them in
such Indenture.
The Subsidiary Guarantees shall be binding upon the Subsidiary
Guarantors and shall inure to the benefit of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee respecting the Security upon which the foregoing Subsidiary Guarantees
are noted, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof and in the Indenture.
The Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which the
foregoing Subsidiary Guarantees are noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
signatories.
KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS ENERGY MARKETING, INC.,
KCS MEDALLION RESOURCES, INC.,
KCS ENERGY SERVICES, INC.,
MEDALLION CALIFORNIA PROPERTIES CO.,
MEDALLION GAS SERVICES, INC.,
NATIONAL ENERDRILL CORPORATION and
PROLIQ, INC.
By:
-------------------------------
Vice President
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Section 2.5 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: State Street Bank and Trust Company
------------------------------- Trustee
By:
-------------------------------
Authorized Signatory
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ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture for original issue is limited to
$150,000,000. The aggregate principal amount of Securities Outstanding at any
one time may not exceed $150,000,000 except as provided in Section 3.7 hereof.
The Securities shall be known and designated as the "8 7/8% Senior
Subordinated Notes due 2008," of the Company. Their Stated Maturity shall be
January 15, 2008, and they shall bear interest at the rate of 8 7/8% per annum
from January 21, 1998, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semiannually on January 15
and July 15 in each year, commencing July 15, 1998, and at said Stated Maturity,
until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York; provided, however, that, at the option of the
Company, interest may be paid on Physical Securities on or before the due date
(i) by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register, or (ii) with respect to any
Holder owning Securities in the principal amount of $500,000 or more, by wire
transfer to an account maintained by the Holder located in the United States, as
specified in a written notice to the Trustee by any such Holder requesting
payment by wire transfer and specifying the account to which transfer is
requested.
The Securities shall be redeemable as provided in Article XI hereof.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article XII hereof.
The Securities shall be guaranteed by the Subsidiary Guarantors as
provided in Article XIII hereof.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article XIV hereof.
Section 3.2 Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
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Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President of the Company, under its corporate
seal reproduced thereon and attested by its Secretary or an Assistant Secretary
of the Company. The signature of any of these officers on the Securities may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company and having the notations
of Subsidiary Guarantees executed by the Subsidiary Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities with the notations of
Subsidiary Guarantees thereon as provided in this Indenture. Such Company Order
shall specify the principal amount of the Securities to be authenticated, broken
down between Global Securities and Physical Securities, and the date on which
the original issue of Securities is to be authenticated. The Company may also
from time to time prepare and deliver to the Trustee, and the Trustee shall in
such event keep custody of, a supply of unauthenticated Securities duly executed
by the Company for use in the transfer and exchange of Securities. The Trustee
is hereby authorized and directed to complete such forms of Securities as to
principal amounts and registered owners, in accordance with the provisions
hereof, in effecting transfers and exchanges of Securities as provided herein.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with Article VIII
hereof, shall be consolidated or merged with or into any other Person or shall
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its Properties to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a sale, conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article VIII hereof,
any of the Securities authenticated or delivered prior to such sale,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person be exchanged for other
Securities executed in
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the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and having
the notations of Subsidiary Guarantees thereon and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities and notations of Subsidiary Guarantees may determine,
as conclusively evidenced by their execution of such Securities and notations of
Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2
hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations having the notations of
Subsidiary Guarantees thereon. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 3.5 Registration of Transfer and Exchange.
The Company shall cause to be kept a register (the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times and during normal business hours, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar") for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 10.2 hereof, the Company
shall execute, and the Trustee
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shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination and of a
like aggregate principal amount, each such Security having the notation of
Subsidiary Guarantees thereon.
Furthermore, any Holder of a Global Security shall, by acceptance of such
Global Security, be deemed to have agreed that transfers of beneficial interests
in such Global Security 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 Security shall be required to be reflected in a book entry.
At the option of any Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at the office or agency
of the Company designated pursuant to Section 10.2 hereof. Whenever any
Securities are so surrendered for exchange, the Company shall execute, the
Subsidiary Guarantors shall execute notations of Subsidiary Guarantees on, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees noted thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the respective Subsidiary Guarantors, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing. In the event of a
request to exchange a Physical Security for a beneficial interest in a Global
Security, the Security Registrar shall cancel such Physical Security and cause,
or direct the Depository to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Security Registrar, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Security is then outstanding, the Company
shall issue and the Trustee shall upon receipt of a Company Order authenticate a
new Global Security in the appropriate amount.
Any Person having a beneficial interest in a Global Security may upon
request to the Security Registrar exchange such beneficial interest for a
Physical Security. Upon receipt by the Security Registrar of written
instructions (or such other form of instructions as is customary for the
Depository) from the Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Security and upon receipt by the Security
Registrar of a written order or such other form of instructions as is customary
for the Depository or the Person designated by the Depository as having such a
beneficial interest containing registration instructions, the Security Registrar
will cause, in accordance with the standing instructions and procedures existing
between the Depository and the Security Registrar, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of a
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Company Order, the Trustee will authenticate and deliver to the transferee a
Physical Security. Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 3.5 shall be registered in such names
and in such authorized denominations as the Depository, pursuant to instructions
from Agent Members or otherwise, shall instruct the Security Registrar in
writing. The Security Registrar shall deliver such Physical Securities to the
Persons in whose names such Physical Securities are so registered.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities, 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
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.8 hereof not
involving any transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, register the transfer of or exchange any Physical
Security during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities selected for redemption under
Section 11.4 hereof and ending at the close of business on the day of such
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Physical Security so selected for redemption in whole or in
part, except the unredeemed portion of any such Security being redeemed in part.
Section 3.6 Book-Entry Provisions for Global Securities.
Each Global Security shall be (i) registered in the name of the
Depository for such Global Security or the nominee of such Depository, (ii)
delivered to the Trustee as custodian for such Depository and (iii) bear the
legend set forth in Exhibit A hereto.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under such
Global Security, and the Depository may be treated by the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Subsidiary Guarantors, the Trustee or any agent of the Company,
the Subsidiary Guarantors 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
Security.
Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be transferred or exchanged for Physical Securities, upon request of such
owners, in accordance with the rules and procedures of the Depository and the
provisions of Section 3.5 hereof. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a Global Security if, and only if,
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either (1) the Depository notifies the Company that it is unwilling or unable to
continue as depositary for the Global Security and a successor depositary is not
appointed by the Company within 90 days of such notice, (2) an Event of Default
has occurred and is continuing and the Security Registrar has received a request
from the Depository to issue Physical Securities in lieu of all or a portion of
the Global Security (in which case the Company shall deliver Physical Securities
within 30 days of such request) or (3) the Company determines not to have the
Securities represented by the Global Security and notifies the Depository and
the Security Registrar thereof.
In connection with the transfer of an entire Global Security to
beneficial owners pursuant to this Section, the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall upon Company Order authenticate and deliver, to
each beneficial owner identified by the Depository, in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.
The Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, the Subsidiary Guarantors and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute, the Subsidiary Guarantors shall
execute the notation of Subsidiary Guarantees, and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, having the notation of Subsidiary
Guarantees thereon, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the respective Subsidiary
Guarantors, whether or not the mutilated, destroyed, lost or stolen
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Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.8 Payment of Interest: Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2
hereof.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, and such
money when deposited shall be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given in the
manner provided for in Section 15.5 hereof, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (b).
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(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.9 Persons Deemed Owners.
Prior to the due presentment of a Security for registration of transfer,
the Company, the Subsidiary Guarantors, the Security Registrar, the Trustee and
any agent of the Company, the Subsidiary Guarantors or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any, on)
and (subject to Section 3.8 hereof) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Subsidiary Guarantors, the Security Registrar, the Trustee or any
agent of the Company, the Subsidiary Guarantors or the Trustee shall be affected
by notice to the contrary.
Section 3.10 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order or in
accordance with the Trustee's usual practice; provided, however, that the
Trustee shall not be required to destroy cancelled Securities.
Section 3.11 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 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
Securities, as expressly provided for in this Indenture) as to all Outstanding
Securities, and the Trustee, at the expense of the Company, shall, upon payment
of all amounts due the Trustee under Section 6.6 hereof, execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(a) either
(1) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.7 hereof and (ii)
Securities for whose payment money or United States governmental
obligations of the type described in clause (i) of the definition of Cash
Equivalents 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 10.3 hereof) have been delivered to the Trustee for
cancellation, or
(2) all such Securities 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 Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be, together with instructions from the Company irrevocably directing the
Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(b) the Company has paid or caused to be paid all other sums then
due and payable hereunder by the Company; and
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(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 6.6 hereof and, if money
shall have been deposited with the Trustee pursuant to this Section, the
obligations of the Trustee under Section 4.2 hereof and the last paragraph of
Section 10.3 hereof shall survive.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3 hereof,
all money deposited with the Trustee pursuant to Section 4.1 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V
REMEDIES
Section 5.1 Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XIV or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of the principal of or premium, if any, on any
of the Securities when the same becomes due and payable, whether such payment is
due at Stated Maturity, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx pursuant to a Change of
Control Offer or a Net Proceeds Offer, upon acceleration or otherwise; or
(b) default in the payment of any installment of interest on any of the
Securities, when it becomes due and payable, and the continuance of such default
for a period of 30 days; or
(c) default in the performance or breach of the provisions of Article
VIII hereof, the failure to make or consummate a Change of Control Offer in
accordance with the provisions of Section 10.16 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
10.17; or
(d) the Company or any Subsidiary Guarantor shall fail to perform or
observe any other term, covenant or agreement contained in the Securities, any
Subsidiary Guarantee or this
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Indenture (other than a default specified in subparagraph (a), (b) or (c) above)
for a period of 60 days after written notice of such failure stating that it is
a "notice of default" hereunder and requiring the Company or such Subsidiary
Guarantor, as the case may be, to remedy the same shall have been given (x) to
the Company by the Trustee or (y) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities then
Outstanding; or
(e) the occurrence and continuation beyond any applicable grace period of
any default in the payment of the principal of (or premium, if any, on) or
interest on any Indebtedness of the Company (other than the Securities) or any
Subsidiary Guarantor or any other Restricted Subsidiary for money borrowed when
due, or any other default resulting in acceleration of any Indebtedness of the
Company or any Subsidiary Guarantor or any other Restricted Subsidiary for money
borrowed, provided that the aggregate principal amount of such Indebtedness
shall exceed $5,000,000 or
(f) any Subsidiary Guarantee shall for any reason cease to be, or be
asserted by the Company or any Subsidiary Guarantor, as applicable, not to be,
in full force and effect (except pursuant to the release of any such Subsidiary
Guarantee in accordance with this Indenture); or
(g) final judgments or orders rendered against the Company or any
Subsidiary Guarantor or any other Restricted Subsidiary that are unsatisfied and
that require the payment in money, either individually or in an aggregate
amount, that is more than $5,000,000 over the coverage under applicable
insurance policies and either (A) commencement by any creditor of an enforcement
proceeding upon such judgment (other than a judgment that is stayed by reason of
pending appeal or otherwise) or (B) the occurrence of a 60-day period during
which a stay of such judgment or order, by reason of pending appeal or
otherwise, was not in effect; or
(h) the entry of a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Company or any Subsidiary Guarantor or
any other Restricted Subsidiary in an involuntary case or proceeding under the
Federal Bankruptcy Code or any other applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) adjudging the Company or
any Subsidiary Guarantor or any other Restricted Subsidiary bankrupt or
insolvent, or approving a petition seeking reorganization, arrangement,
adjustment or composition of the Company or any Subsidiary Guarantor or any
other Restricted Subsidiary under the Federal Bankruptcy Code or any applicable
federal or state law, or appointing under any such law a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary Guarantor or any other Restricted Subsidiary or of a
substantial part of its consolidated assets, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(i) the commencement by the Company or any Subsidiary Guarantor or any
other Restricted Subsidiary of a voluntary case or proceeding under the Federal
Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or any other case or proceeding to be
adjudicated bankrupt or insolvent, or the consent by the Company
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or any Subsidiary Guarantor or any other Restricted Subsidiary to the entry of a
decree or order for relief in respect thereof in an involuntary case or
proceeding under the Federal Bankruptcy Code or any other applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary of a petition or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it under any such law to the
filing of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of the Company or any Subsidiary Guarantor or any other
Restricted Subsidiary or of any substantial part of its consolidated assets, or
the making by it of an assignment for the benefit of creditors under any such
law, or the admission by it in writing of its inability to pay its debts
generally as they become due or taking of corporate action by the Company or any
Subsidiary Guarantor or any other Restricted Subsidiary in furtherance of any
such action.
Section 5.2 Acceleration of Maturity: Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(h) or (i) hereof) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
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
Securities shall, by a notice in writing to the Company, declare all unpaid
principal of, premium, if any, and accrued and unpaid interest on all the
Securities to be due and payable immediately, upon which declaration all amounts
payable in respect of the Securities shall be immediately due and payable. If an
Event of Default specified in Section 5.1(h) or (i) hereof 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.
Promptly after the occurrence of a declaration of acceleration, the
Company shall notify each holder of Senior Indebtedness thereof, but failure to
give any such notice shall not affect such declaration or its consequences.
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 Securities Outstanding, by written notice to
the Company, the Subsidiary Guarantors and the Trustee, may rescind and annul
such declaration and its consequences if
(a) the Company or any Subsidiary Guarantor has paid or deposited with
the Trustee a sum sufficient to pay,
(1) all overdue interest on all Outstanding Securities,
(2) all unpaid principal of (and premium, if any, on) any
Outstanding Securities which have become due otherwise than by such
declaration of acceleration, including any
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Securities required to have been purchased on a Change of Control Date or
a Net Proceeds Payment Date pursuant to a Change of Control Offer or a
Net Proceeds Offer, as applicable, and interest on such unpaid principal
at the rate borne by the Securities,
(3) to the extent that payment of such interest is lawful,
interest on overdue Interest and overdue principal at the rate borne by
the Securities (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 premium, if any, on) or interest on Securities which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13 hereof.
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 5.1(e) hereof 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
satisfactory to the Trustee of such events is provided to the Trustee, within 30
days after any such acceleration in respect of the Securities, and so long as
such rescission of any such acceleration of the Securities does not conflict
with any judgment or decree as certified to the Trustee by the Company.
Section 5.3 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
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
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(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof or with respect to any Security
required to have been purchased by the Company on the Change of Control Purchase
Date or the Net Proceeds Payment Date pursuant to a Change of Control Offer or
Net Proceeds Offer, as applicable,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and
interest on any overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installment of interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
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 Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Securities, their creditors or the Property of the
Company, any Subsidiary Guarantor or of such other obligor, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company, the Subsidiary
Guarantors or such other obligor for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents and take any other actions including
participation as a full member of any creditor or other committee as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
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(b) subject to Article XIV, to collect and receive any money 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 6.6 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the Subsidiary Guarantees or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
the Subsidiary Guarantees may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6 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
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under Section
6.6 hereof;
SECOND: subject to Article XIV, to the payment of the amounts then
due and unpaid for principal of (and premium, if any, on) and interest on
the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively; and
THIRD: subject to Article XIV, the balance, if any, to the
Company.
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Section 5.7 Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority or more in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article XII hereof) and
in such Security of the principal of (and premium if any, on) and (subject to
Section 3.8 hereof) interest on, such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Subsidiary Guarantors, the
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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 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.7 hereof, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 5.12 Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(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 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any existing Default or Event of Default hereunder and its consequences,
except a Default or Event of Default
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(a) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article IX
hereof cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected thereby.
Upon any such waiver, such Default or Event of Default shall cease to
exist for every purpose under this Indenture, but no such waiver shall extend to
any subsequent or other fault or Event of Default or impair any right consequent
thereon.
Section 5.14 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the
extent that each may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension, or usury law or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company or any
Subsidiary Guarantor from paying all or any portion of the principal of
(premium, if any, on) or interest on the Securities 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) each of the Company and the Subsidiary
Guarantors hereby expressly waives all benefit or advantage of any such law, and
covenant that they 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 VI
THE TRUSTEE
Section 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise 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 his own affairs.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, and shall be fully protected in so relying, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
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Trustee and conforming to the requirements of this Indenture; provided,
however, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(i) this paragraph shall not limit the effect of Section 6.1(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.12.
Section 6.2 Certain Rights of Trustee.
Subject to the provisions of Section 6.1 hereof:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may reasonably see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it in good faith to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(i) the Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer has actual knowledge thereof or unless
written notice thereof is received by the Trustee at its Corporate Trust Office
and such notice references the Securities generally, the Company or this
Indenture.
The Trustee shall not be required to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 6.3 Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities and the notations of
Subsidiary Guarantees thereon, except for the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Subsidiary Guarantees or the
Securities, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder, and that the statements made by it in the Statement of
Eligibility and Qualification on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall not
be accountable for the use or application by the Company of any Securities or
the proceeds thereof.
Section 6.4 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company, the Subsidiary Guarantors or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311 in the case of the Trustee, may otherwise
deal with the Company and the Subsidiary Guarantors with the same rights it
would have if it were not the Trustee, Paying Agent, Security Registrar or such
other agent.
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Section 6.5 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company or any Subsidiary Guarantor.
Section 6.6 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's wilful misconduct, negligence
or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without wilful misconduct, negligence or bad
faith on its part, (i) arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder or (ii) in connection with
enforcing this indemnification provision.
The obligations of the Company under this Section 6.6 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall not be
subordinated to the payment of Senior Indebtedness of the Company pursuant to
Article XIV hereof and shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture or any other
termination under any Insolvency or Liquidation Proceeding. As security for the
performance of such obligations of the Company, the Trustee shall have a claim
and lien prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for payment of principal of
(and premium, if any, on) or interest on particular Securities. Such lien shall
survive the satisfaction and discharge of this Indenture or any other
termination under any Insolvency or Liquidation Proceeding.
When the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in paragraph (h) or (i) of Section 5.1 of this
Indenture, such expenses and the compensation for such services are intended to
constitute expenses of administration under any Insolvency or Liquidation
Proceeding.
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Section 6.7 Corporate Trustee Required: Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 6.7, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.8 Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act; provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) 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
TIA Section 310(b)(1) are met.
Section 6.9 Resignation and Removal: Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.10 hereof.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 6.10 hereof shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.7
hereof and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
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(3) 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 a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee. The
evidence of such successorship may, but need not be, evidenced by a supplemental
indenture.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 15.5 hereof. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
Section 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all amounts due
it under Section 6.6 hereof, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all money
and other Property held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it way 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 (including the trust created by this Indenture), shall
be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided; provided, however, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities in
the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 6.12 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.13 Notice of Defaults.
Within 60 days after the occurrence of any Default hereunder, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
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 premium, if any, on) or interest
on any Security, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Holders' Lists: Holder Communications: Disclosures Respecting
Holders.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. Neither the Company, any Subsidiary Guarantor nor the Trustee shall
be under any responsibility with regard to the accuracy of such list. If the
Trustee is not the Security Registrar, the Company shall furnish to the Trustee
semi-annually before each Regular Record Date, and at such other times as the
Trustee may reasonably request in writing, a list, in such form as the Trustee
may reasonably request, as of such date of the names and addresses of the
Holders then known to the Company. The Company and the Trustee shall also
satisfy any other requirements imposed upon each of them by TIA Section 312(a).
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities.
Every Holder of Securities, by receiving and holding the same, agrees with the
Company, the Subsidiary Guarantors, the Security Registrar and the Trustee that
none of the Company, the Subsidiary Guarantors, the Security Registrar or the
Trustee, or any agent of any of them, shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with TIA Section 312, regardless of the source from which such
information was derived, that each of such Persons shall have the protection of
TIA Section 312(c) and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under TIA Section 312(b).
Section 7.2 Reports By Trustee.
Within 60 days after May 15 of each year commencing with May 15, 1998,
the Trustee shall transmit by mail to the Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 in
accordance with and to the extent required under TIA Section 313(a). The
Trustee shall also comply with TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing If the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each Trustee's report, at the time of its mailing to Holders of
Securities, shall be mailed to the Company and filed with the Commission and
each stock exchange, if any, on which the Securities are listed.
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Section 7.3 Reports by Company.
The Company shall:
(a) 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 such information,
documents or reports as required pursuant to Section 10.9 hereof;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports (without exhibits except to the extent required by TIA Section 313(c))
required to be filed by the Company pursuant to paragraph (a) or (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate etc.. Only on Certain Terms.
The Company shall not, in any single transaction or a series of related
transactions, merge or consolidate with or into any other Person, or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
the Properties of the Company and its Restricted Subsidiaries on a consolidated
basis to any Person or group of Affiliated Persons, and the Company shall not
permit any of its Restricted Subsidiaries to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the Properties of the Company
and its Restricted Subsidiaries on a consolidated basis to any other Person or
group of Affiliated Persons, unless at the time and after giving affect thereto:
(a) either (i) if the transaction is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the Properties of the Company or its
Restricted Subsidiaries, as the case may be, are sold, assigned, conveyed,
transferred, leased or otherwise disposed of (any such surviving Person or
transferee Person being
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called the "Surviving Entity") shall be a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall, in either case, expressly assume by a
supplemental indenture to this Indenture executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture, and, in each case, this Indenture shall
remain in full force and effect;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries which becomes the obligation of the Company or any of
its Restricted Subsidiaries in connection with or as a result of such
transaction or transactions as having been incurred at the time of such
transaction or transactions), no Default or Event of Default shall have occurred
and be continuing;
(c) except in the case of the consolidation or merger of any Restricted
Subsidiary with or into the Company, immediately after giving effect to such
transaction or transactions on a pro forma basis, the Consolidated Net Worth of
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) is at least equal to the Consolidated Net Worth of
the Company immediately before such transaction or transactions;
(d) except in the case of the consolidation or merger of the Company with
or into a Restricted Subsidiary or any Restricted Subsidiary with or into the
Company or another Restricted Subsidiary, immediately before and immediately
after giving effect to such transaction or transactions on a pro forma basis
(assuming that the transaction or transactions occurred on the first day of the
period of four full fiscal quarters ending immediately prior to the consummation
of such transaction or transactions, with the appropriate adjustments with
respect to the transaction or transactions being included in such pro forma
calculation), the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) could incur $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) under Section 10.12(a) hereof;
(e) if the Company is not the continuing obligor under this Indenture,
then each Subsidiary Guarantor, unless it is the Surviving Entity, shall have by
supplemental indenture confirmed that its Subsidiary Guarantee of the Securities
shall apply to the Surviving Entity's obligations under this Indenture and the
Securities:
(f) if any of the Properties of the Company or any of its Restricted
Subsidiaries would upon such transaction or series of related transactions
become subject to any Lien (other than a Permitted Lien), the creation or
imposition of such Lien shall have been in compliance with Section 10.15 hereof;
and
(g) the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) shall have delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, (i) an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer, lease
or other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Indenture
and (ii) an Opinion of Counsel stating that the requirements of Section 8.1(a)
have been satisfied.
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Section 8.2 Successor Substituted.
Upon any consolidation of the Company with or merger of the Company into
any other corporation or any sale, assignment, lease, conveyance, transfer or
other disposition of all or substantially all of the Properties of the Company
and its Restricted Subsidiaries on a consolidated basis in accordance with
Section 8.1 hereof, the Surviving Entity shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Surviving Entity had been named as the Company
herein, and in the event of any such sale, assignment, lease, conveyance,
transfer or other disposition, the Company (which term shall for this purpose
mean the Person named as the "Company" in the first paragraph of this Indenture
or any successor Person which shall theretofore become such in the manner
described in Section 8.1 hereof), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and the
Securities, and the Company may be dissolved and liquidated and such dissolution
and liquidation shall not cause a Change of Control under clause (e) of the
definition thereof to occur unless the sale, assignment, lease, conveyance,
transfer or other disposition of all or substantially all of the Properties of
the Company and its Restricted Subsidiaries on a consolidated basis to any
Person otherwise results in a Change of Control.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, each of the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee upon Company Request, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power herein conferred upon the Company; or
(c) to comply with any requirement of the SEC in connection with
qualifying this Indenture under the TIA or maintaining such qualification
thereafter; or
(d) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee pursuant to the requirements of Sections 6.9 and 6.10
hereof; or
(e) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with
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respect to matters or questions arising under this Indenture provided that such
action shall not adversely affect the interests of the Holders in any material
respect; or
(f) to secure the Securities or the Subsidiary Guarantees pursuant to the
requirements of Section 10.15 hereof or otherwise; or
(g) to add any Restricted Subsidiary as an additional Subsidiary
Guarantor as provided in Section 10.13(a) hereof or to evidence the succession
of another Person to any Subsidiary Guarantor pursuant to Section 13.2(b) hereof
and the assumption by any such successor of the covenants and agreements of such
Subsidiary Guarantor contained herein, in the Securities and in the Subsidiary
Guarantee of such Subsidiary Guarantor; or
(h) to release a Subsidiary Guarantor from its Subsidiary Guarantee
pursuant to Section 13.3 hereof; or
(i) to provide for uncertificated Securities in addition to or in place
of certificated Securities.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, each of the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee upon Company Request may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium thereon, or change the coin or currency in which
principal of any Security or any premium or the interest on any Security is
payable, or impair the right to institute suit for the enforcement of any such
payment after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); or
(b) reduce the percentage of aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder or the consequences of a default provided for in this
Indenture; or
(c) modify any of the provisions of this Section or Sections 5.13 and
10.20 hereof, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
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(d) modify any of the provisions of Section 13.8 or Article XIV hereof in
a manner adverse to the Holders; or
(e) amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control, or to
make and consummate a Net Proceeds Offer with respect to any Asset Sale, or
modify any of the provisions or definitions with respect thereto.
It shall not be necessary for any Act of the Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental Indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company, with the notations of Subsidiary Guarantees thereon executed by the
Subsidiary Guarantors, and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
Section 9.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2 hereof, the
Company shall give notice thereof
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to the Holders of each Outstanding Security affected, in the manner provided for
in Section 15.5 hereof, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of (and premium, if any, on) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities, the Subsidiary Guarantees and this
Indenture may be served. The Corporate Trust Office shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the aforementioned office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation.
Further, if at any time there shall be no such office or agency in The City of
New York where the Securities may be presented or surrendered for payment, the
Company shall forthwith designate amid maintain such an office or agency in The
City of New York, in order that the Securities shall at all times be payable in
The City of New York. The Company will give prompt written notice to the Trustee
of any such designation or rescission and any change in the location of any such
other office or agency.
Section 10.3 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it shall,
on or before 11:00 a.m., Eastern time, on each due date of the principal of (and
premium, if any, on) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sum
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for the
Securities, it will on or before 11:00 am., Eastern time, on each due date of
the principal of (and premium, if any, on), or interest on, any Securities,
deposit with a Paying Agent immediately available funds in a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such funds
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any, on) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums. 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 XII
or XIV) at any time in excess of amounts required to pay principal, premium, if
any, or interest on the Securities.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any, on) or interest
on any Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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Section 10.4 Corporate Existence.
Except as expressly permitted by Article VIII hereof, Section 10.17
hereof or other provisions of this Indenture, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such existence of its Restricted
Subsidiaries, rights or franchises, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.5 Payment of Taxes: Maintenance of Properties: Insurance.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) 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 (b) all 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 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.
The Company shall cause all material Properties owned by the Company or
any Restricted Subsidiary and used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted),
all as in the judgment of the Company or such Restricted Subsidiary may be
necessary so that its business may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section shall prevent the
Company or any Restricted Subsidiary from discontinuing the maintenance of any
of such Properties if such discontinuance is, in the judgment of the Company or
such Restricted Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Restricted Subsidiary and not disadvantageous in
any material respect to the Holders. Notwithstanding the foregoing, nothing
contained in this Section 10.5 shall limit or impair in any way the right of the
Company and its Restricted Subsidiaries to sell, divest and otherwise to engage
in transactions that are otherwise permitted by this Indenture.
The Company shall at all times keep all of its, and cause its Restricted
Subsidiaries to keep their, Properties which are of an insurable nature insured
with insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character and in a similar location is
usually so insured by corporations similarly situated and owning like
Properties.
The Company or any Restricted Subsidiary may adopt such other plan or
method of protection, in lieu of or supplemental to insurance with insurers,
whether by the establishment of
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an insurance fund or reserve to be held and applied to make good losses from
casualties, or otherwise, conforming to the systems of self-insurance maintained
by corporations similarly situated and in a similar location and owning like
Properties, as may be determined by the Board of Directors of the Company or
such Restricted Subsidiary.
Section 10.6 Limitation on Other Senior Subordinated Indebtedness.
Notwithstanding the provisions of Section 10.12 hereof, (i) the Company
shall not incur (as such term is defined in Section 10.12(a) hereof) any
Indebtedness that is expressly subordinate or junior in right of payment to any
Senior Indebtedness of the Company and senior in right of payment to the
Securities and (ii) no Subsidiary Guarantor shall incur (as such term is defined
in Section 10.12(a) hereof) any Indebtedness that is expressly subordinate or
junior in right of payment to any Senior Indebtedness of such Subsidiary
Guarantor and senior in right of payment to its Subsidiary Guarantee, provided
however, that the foregoing limitations shall not apply to distinctions between
categories of Indebtedness that exist by reason of any Liens arising or created
in respect of some but not all such Indebtedness.
Section 10.7 Limitation on Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in the conduct of any business other than the Oil and
Gas Business.
Section 10.8 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 100 days after the
end of each fiscal year of the Company and within 45 days of the end of each of
the first, second and third quarters of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company and
its Restricted Subsidiaries during the preceding fiscal quarter or fiscal year,
as applicable, has been made under the supervision of the signing Officers with
a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of such Officer's
knowledge the Company has kept, observed, performed and fulfilled each and every
condition and covenant contained in this Indenture and no Default or Event of
Default has occurred and is continuing (or, if a Default or Event of Default
shall have occurred to either such Officer's knowledge, describing all such
Defaults or Events of Default of which such Officer may have knowledge and what
action the Company is taking or proposes to take with respect thereto). Such
Officers' Certificate shall comply with TIA Section 314(a)(4). For purposes of
this Section 10.8(a), such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
(b) The Company shall, so long as any of the Securities is outstanding.
deliver to the Trustee, upon any of its Officers becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company proposes to take with respect thereto,
within 10 days of its occurrence.
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Section 10.9 Provision of Financial Information.
The Company shall file on a timely basis with the SEC, to the extent such
filings are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to file
if it were subject to Section 13 or 15 of the Exchange Act. The Company shall
also file with the Trustee (with exhibits), and provide to each Holder of
Securities (without exhibits), without cost to such Holder, copies of such
reports and documents within 15 days after the date on which the Company files
such reports and documents with the Commission or the date on which the Company
would be required to file such reports and documents if the Company were so
required and, if filing such reports and documents with the Commission is not
accepted by the Commission or is prohibited under the Exchange Act, the Company
shall supply at its cost copies of such reports and documents (including any
exhibits thereto) to any Holder of Securities promptly upon written request
given in accordance with Section 15.4 hereof.
Section 10.10 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, take the following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of Capital Stock of the Company (other than
dividends or distributions payable solely in shares of Qualified Capital
Stock of the Company or in options, warrants or other rights to purchase
Qualified Capital Stock of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any Affiliate thereof (other than any
Restricted Subsidiary) or any options, warrants or other rights to
acquire such Capital Stock;
(iii) make any principal payment on or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to any scheduled
principal payment, scheduled sinking fund payment or maturity, any
Subordinated Indebtedness, except in any case out of the proceeds of
Permitted Refinancing Indebtedness, or
(iv) make any Restricted Investment;
(such payments or other actions described in clauses (i) through (iv) being
collectively referred to as "Restricted Payments"), unless at the time of and
after giving effect to the proposed Restricted Payment (the amount of any such
Restricted Payment, if other than cash, shall be the amount determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution), (A) no Default or Event of Default shall have
occurred and be continuing, (B) the Company could incur $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) in accordance with Section
10.12(a) hereof and (C) the
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aggregate amount of all Restricted Payments declared or made after the date of
this Indenture shall not exceed the sum (without duplication) of the following:
(1) 50% of the Consolidated Net Income of the Company accrued on a
cumulative basis during the period beginning on October 1, 1997 and
ending on the last day of the Company's last fiscal quarter ending prior
to the date of such proposed Restricted Payment (or, if such Consolidated
Net Income shall be a loss, minus 100% of such loss), plus
(2) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of shares of Qualified Capital Stock of the
Company or any options, warrants or rights to purchase such shares of
Qualified Capital Stock of the Company, plus
(3) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company (other than from any of its Restricted
Subsidiaries) upon the exercise of any options, warrants or rights to
purchase shares of Qualified Capital Stock of the Company, plus
(4) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of Indebtedness or shares of Disqualified
Capital Stock that have been converted into or exchanged for Qualified
Capital Stock of the Company, together with the aggregate cash received
by the Company at the time of such conversion or exchange, plus
(5) to the extent not otherwise included in Consolidated Net Income, the
net reduction in Investments in Unrestricted Subsidiaries resulting from
dividends, repayments of loans or advances, or other transfers of assets,
in each case to the Company or a Restricted Subsidiary after the date of
this Indenture from any Unrestricted Subsidiary or from the redesignation
of an Unrestricted Subsidiary as a Restricted Subsidiary (valued in each
case as provided in the definition of Investment), not to exceed in the
case of any Unrestricted Subsidiary the total amount of Investments
(other than Permitted Investments) in such Unrestricted Subsidiary made
by the Company and its Restricted Subsidiaries in such Unrestricted
Subsidiary after the date of this Indenture, plus
(6) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its Restricted
Subsidiaries may take the following actions so long as (in the case of clauses
(ii), (iii) and (iv) below) no Default or Event of Default shall have occurred
and be continuing:
(i) the payment of any dividend on any Capital Stock of the
Company within 60 days after the date of declaration thereof, if at such
declaration date such declaration complied with the provisions of
paragraph (a) above (and such payment shall be deemed to have been paid
on such date of declaration for purposes of any calculation required by
the provisions of paragraph (a) above);
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(ii) the repurchase, redemption or other acquisition or retirement
of any shares of any class of Capital Stock of the Company or any
Restricted Subsidiary, in exchange for, or out of the aggregate Net Cash
Proceeds of, a substantially concurrent issue and sale (other than to a
Restricted Subsidiary) of shares of Qualified Capital Stock of the
Company;
(iii) the repurchase, redemption, repayment, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness in
exchange for, or out of the aggregate Net Cash Proceeds from, a
substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of shares of Qualified Capital Stock of the Company; and
(iv) repurchases, acquisitions or retirements of shares of
Qualified Capital Stock of the Company deemed to occur upon the exercise
of stock options or similar rights issued under employee benefit plans of
the Company if such shares represent all or a portion of the exercise
price or are surrendered in connection with satisfying any federal income
tax obligation.
The actions described in clauses (i), (ii), (iii) and (iv) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be made in accordance
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (C) of paragraph (a), provided
that any dividend paid pursuant to clause (i) of this paragraph (b) shall reduce
the amount that would otherwise be available under clause (C) of paragraph (a)
when declared, but not also when subsequently paid pursuant to such clause (i).
(c) In computing Consolidated Net Income under paragraph (a) above, (1)
the Company shall use audited financial statements for the portions of the
relevant period for which audited financial statements are available on the date
of determination and unaudited financial statements and other current financial
data based on the books and records of the Company for the remaining portion of
such period and (2) the Company shall be permitted to rely in good faith on the
financial statements and other financial data derived from the books and records
of the Company that are available on the date of determination. If the Company
makes a Restricted Payment which, at the time of the making of such Restricted
Payment would in the good faith determination of the Company be permitted under
the requirements of this Indenture, such Restricted Payment shall be deemed to
have been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company's financial statements affecting
Consolidated Net Income of the Company for any period.
Section 10.11 Limitation on Guarantees by Subsidiary Guarantors.
The Company shall not permit any Subsidiary Guarantor to guarantee the
payment of any Subordinated Indebtedness of the Company unless such guarantee
shall be subordinated to such Subsidiary Guarantor's Subsidiary Guarantee at
least to the same extent as such Subordinated Indebtedness is subordinated to
the Securities; provided, however, that this Section 10.11 shall not be
applicable to any guarantee of any Subsidiary Guarantor that (i) existed at the
time such Person
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became a Subsidiary of the Company and (ii) was not incurred in connection with,
or in contemplation of, such Person's becoming a Subsidiary of the Company.
Section 10.12 Limitation on Indebtedness and Disqualified Capital Stock.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume, guarantee or in any manner become
directly or indirectly liable for the payment of (collectively, "incur") any
Indebtedness (including any Acquired Indebtedness but excluding any Permitted
Indebtedness), or any Disqualified Common Stock, unless, on a pro forma basis
after giving effect to such incurrence and the application of the proceeds
therefrom, the Consolidated EBITDA Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period, would have been
equal to or greater than 2.5 to 1.0.
(b) The amount of any guarantee by the Company or any Restricted
Subsidiary of any Indebtedness of the Company or one or more Restricted
Subsidiaries shall not be deemed to be outstanding or incurred for purposes of
this Section 10.12 hereof in addition to the amount of Indebtedness which it
guarantees.
(c) For purposes of this Section 10.12, Indebtedness of any Person that
becomes a Restricted Subsidiary by merger, consolidation or other acquisition
shall be deemed to have been incurred by the Company and the Restricted
Subsidiary at the time such Person becomes a Restricted Subsidiary.
Section 10.13 Additional Subsidiary Guarantors.
(a) The Company shall cause each Restricted Subsidiary that becomes, or
comes into existence as, a Restricted Subsidiary after the date of this
Indenture and has assets, businesses, divisions, real property or equipment with
a Fair Market Value in excess of $1,000,000 to execute and deliver a
supplemental indenture to this indenture agreeing to be bound by its terms
applicable to a Subsidiary Guarantor and providing for a Subsidiary Guarantee of
the Securities by such Restricted Subsidiary.
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Subsidiary Guarantee incurred by a Restricted Subsidiary pursuant
to this Section 10.13 shall provide by its terms that it shall be automatically
and unconditionally released and discharged upon the terms and conditions set
forth in Section 13.3 hereof.
Section 10.14 Limitation on Issuances and Sales of Capital Stock by
Restricted Subsidiaries.
The Company (a) shall not permit any Restricted Subsidiary to issue or
sell any Capital Stock to any Person other than to the Company or another
Restricted Subsidiary (unless, after giving effect thereto, such Restricted
Subsidiary no longer qualifies as such) and (b) shall not permit any Person
other than the Company or another Restricted Subsidiary to own any Capital Stock
of any Restricted Subsidiary.
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Section 10.15 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume, affirm or suffer to exist or
become effective any Lien of any kind, except for Permitted Liens, upon any of
their respective Properties, whether now owned or acquired after the date of
this Indenture, or any income or profits therefrom, to secure (a) any
Indebtedness of the Company or such Restricted Subsidiary (if it is not also a
Subsidiary Guarantor), unless prior to, or contemporaneously therewith, the
Securities are equally and ratably secured or (b) any Indebtedness of any
Subsidiary Guarantor, unless prior to, or contemporaneously therewith, the
Subsidiary Guarantees are equally and ratably secured; provided, however, that
if such Indebtedness is expressly subordinated in right of payment to the
Securities or the Subsidiary Guarantees, the Lien securing such Indebtedness
shall be subordinated and junior to the Lien securing the Securities or the
Subsidiary Guarantees, as the case may be, with the same relative priority as
such Indebtedness has with respect to the Securities or the Subsidiary
Guarantees. The foregoing covenant shall not apply to any Lien securing Acquired
Indebtedness, provided that any such Lien extends only to the Properties 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 10.16 Purchase of Securities Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase (a "Change of Control Offer") all of the
then Outstanding Securities, in whole or in part, from the Holders of such
Securities in integral multiples of $1,000, at a purchase price (the "Change of
Control Purchase Price") equal to 101% of the aggregate principal amount of such
Securities, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date (as defined below), in accordance with the procedures set forth in
paragraphs (b), (c) and (d) of this Section. The Company shall, subject to the
provisions described below, be required to purchase all Securities properly
tendered into the Change of Control Offer and not withdrawn. The Company will
not be required to make a Change of Control Offer upon a Change of Control if
another Person makes the Change of Control Offer at the same purchase price, at
the same times and otherwise in substantial compliance with the requirements
applicable to a Change of Control Offer to be made by the Company and purchases
all Securities validly tendered and not withdrawn under such Change of Control
Offer.
(b) The Change of Control Offer is required to remain open for at least
20 Business Days and until the close of business on the fifth Business Day prior
to the Change of Control Purchase Date (as defined below).
(c) Not later than the 30th day following any Change of Control, the
Company shall give to the Trustee in the manner provided in Section 15.4 and
each Holder of the Securities in the manner provided in Section 15.5, a notice
(the "Change of Control Notice") governing the terms of the Change of Control
Offer and stating:
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(1) that a Change in Control has occurred and that such Holder has
the right to require the Company to repurchase such Holder's Securities,
or portion thereof, at the Change of Control Purchase Price;
(2) any information regarding such Change of Control required to
be furnished pursuant to Rule 13e-1 under the Exchange Act and any other
securities laws and regulations thereunder;
(3) a purchase date (the "Change of Control Purchase Date") which
shall be on a Business Day and no earlier than 30 days nor later than 60
days from the date the Change of Control occurred;
(4) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest:
(5) that unless the Company defaults in depositing money with the
Paying Agent in accordance with the last paragraph of clause (d) of this
Section 10.16, or payment is otherwise prevented, any Security, or
portion thereof, accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Purchase
Date; and
(6) the instructions a Holder must follow in order to have his
Securities repurchased in accordance with paragraph (d) of this Section.
If any of the Securities subject to the Change of Control Offer is in the form
of a Global Security, then the Company shall modify the Change of Control Notice
to the extent necessary to accord with the procedures of the Depository
applicable thereto.
(d) Holders electing to have Securities purchased will be required to
surrender such Securities to the Paying Agent at the address specified in the
Change of Control Notice at least five Business Days prior to the Change of
Control Purchase Date. Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than three Business Days prior to the
Change of Control Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the certificate number(s) (in the
case of Physical Securities) and principal amount of the Securities delivered
for purchase by the Holder as to which his election is to be withdrawn and a
statement that such Holder is withdrawing his election to have such Securities
purchased. Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
On the Change of Control Purchase Date, the Company shall (i) accept for
payment Securities or portions thereof validly tendered pursuant to a Change of
Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered, and (iii)
deliver or cause to be delivered to the Trustee the Securities so accepted. The
Paying Agent shall promptly mail or deliver to Holders of the Securities so
tendered payment in an amount equal to the purchase price for the Securities,
and the Company shall
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execute and the Trustee shall authenticate and mail or make available for
delivery to such Holders a new Security having the notation of Subsidiary
Guarantees thereon executed by the Subsidiary Guarantors and equal in principal
amount to any unpurchased portion of the Security which any such Holder did not
surrender for purchase. The Company shall announce the results of a Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date. For purposes of this Section 10.16, the Trustee will act as the Paying
Agent.
(e) The Company shall comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that a Change of Control occurs and the
Company is required to purchase Securities as described in this Section 10.16.
Section 10.17 Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any Asset Sale unless (i) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the Properties sold or otherwise
disposed of pursuant to the Asset Sale, (ii) at least 75% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, in
respect of such Asset Sale consists of cash, Cash Equivalents or properties used
in the Oil and Gas Business of the Company or its Restricted Subsidiaries and
(iii) the Company delivers to the Trustee an Officers' Certificate certifying
that such Asset Sale complies with clauses (i) and (ii) of this Section
10.17(a). The amount (without duplication) of any Indebtedness (other than
Subordinated Indebtedness) of the Company or such Restricted Subsidiary that is
expressly assumed by the transferee in such Asset Sale and with respect to which
the Company or such Restricted Subsidiary, as the case may be, is
unconditionally released by the holder of such Indebtedness, shall be deemed to
be cash or Cash Equivalents for purposes of clause (ii) and shall also be deemed
to constitute a repayment of, and a permanent reduction in, the amount of such
Indebtedness for purposes of the following paragraph.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company or such Restricted Subsidiary may either, no later than 360 days
after such Asset Sale, (i) apply all or any of the Net Available Proceeds
therefrom to repay Senior Indebtedness (including Senior Notes) or Pari Passu
Indebtedness (provided that, in connection with the reduction of Pari Passu
Indebtedness, the Company or such Restricted Subsidiary shall redeem pro rata
portion of the Securities pursuant to Article XI hereof) of the Company or any
Restricted Subsidiary, provided in each case that the related loan commitment
(if any) is thereby permanently reduced by the amount of such Indebtedness so
repaid, or (ii) invest all or any part of the Net Available Proceeds thereof in
Properties that will be used in the Oil and Gas Business of the Company or its
Restricted Subsidiaries, as the case may be. The amount of such Net Available
Proceeds not applied or invested as provided in this paragraph shall constitute
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000 (the "Trigger Date"), the Company shall make an offer to purchase,
from all Holders of the Securities, an aggregate principal amount of Securities
equal to such Excess Proceeds as follows:
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(1) Not later than the 30th day following the Trigger Date, the
Company shall give to the Trustee in the manner provided in Section 15.4
hereof and each Holder of the Securities in the manner provided in
Section 15.5 hereof, a notice (a "Purchase Notice") offering to purchase
(a "Net Proceeds Offer") from all Holders of the Securities the maximum
principal amount (expressed as a multiple of $1,000) of Securities that
may be purchased out of an amount (the "Payment Amount") equal to such
Excess Proceeds.
(2) The offer price for the Securities shall be payable in cash in
an amount equal to 100% of the aggregate principal amount of the
Securities tendered pursuant to a Net Proceeds Offer (the "Offered
Price"), plus accrued and unpaid interest, if any, to the date such Net
Proceeds Offer is consummated, in accordance with paragraph (d) of this
Section. To the extent that the aggregate Offered Price of the Securities
tendered pursuant to a Net Proceeds Offer is less than the Payment Amount
relating thereto (such shortfall constituting a "Net Proceeds
Deficiency"), the Company may use such Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the
limitations of Section 10.10 hereof.
(3) If the aggregate Offered Price of Securities validly tendered
and not withdrawn by Holders thereof exceeds the Payment Amount,
Securities to be purchased will be selected on a pro rata basis by the
Trustee based on the aggregate principal amount of Securities so
tendered. Upon completion of a Net Proceeds Offer, the amount of Excess
Proceeds shall be reset to zero.
(4) The Purchase Notice shall set forth a purchase date (the "Net
Proceeds Payment Date"), which shall be on a Business Day no earlier than
30 days nor later than 60 days from the Trigger Date. The Purchase Notice
shall also state (i) that a Trigger Date with respect to one or more
Asset Sales has occurred and that such Holder has the right to require
the Company to repurchase such Holder's Securities at the Offered Price,
subject to the limitations described in the foregoing paragraph (3), (ii)
any information regarding such Net Proceeds Offer required to be
furnished pursuant to Rule 13e-1 under the Exchange Act and any other
securities laws and regulations thereunder, (iii) that any Security, or
portion thereof, not tendered or accepted for payment will continue to
accrue interest, (iv) that, unless the Company defaults in depositing
money with the Paying Agent in accordance with the last paragraph of
clause (d) of this Section 10.17, or payment is otherwise prevented, any
Security, or portion thereof, accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Payment Date, and (v) the instructions a Holder must follow in order to
have his Securities repurchased in accordance with paragraph (d) of this
Section.
(d) Holders electing to have Securities purchased will be required to
surrender such Securities to the Paying Agent at the address specified in the
Purchase Notice at least five Business Days prior to the Net Proceeds Payment
Date. Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than three Business Days prior to the Net Proceeds Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the certificate number(s) (in the case of Physical Securities)
and principal amount of the Securities
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delivered for purchase by the Holder as to which his election is to be
withdrawn and a statement that such Holder is withdrawing his election to
have such Securities purchased. Holders whose Securities are purchased
only in part will be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered.
On the Net Proceeds Payment Date, the Company shall (i) accept for
payment Securities or portions thereof validly tendered pursuant to a Net
Proceeds Offer in an aggregate principal amount equal to the Payment Amount or
such lesser amount of Securities as has been tendered, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Securities or
portions thereof so tendered in an aggregate principal amount equal to the
Payment Amount or such lesser amount and (iii) deliver or cause to be delivered
to the Trustee the Securities so accepted. The Paying Agent shall promptly mail
or deliver to Holders of the Securities so accepted payment in an amount equal
to the purchase price, and the Company shall execute and the Trustee shall
authenticate and mail or make available for delivery to such Holders a new
Security having the notation of Subsidiary Guarantees thereon executed by the
Subsidiary Guarantors and equal in principal amount to any unpurchased portion
of the Security which any such Holder did not surrender for purchase. Any
Securities not so accepted will be promptly mailed or delivered to the Holder
thereof. The Company shall announce the results of a Net Proceeds Offer on or as
soon as practicable after the Net Proceeds Payment Date. For purposes of this
Section 10.17, the Trustee will act as the Paying Agent.
(e) The Company shall not permit any Restricted Subsidiary to enter into
or suffer to exist any agreement that would place any restriction of any kind
(other than pursuant to law or regulation) on the ability of the Company to make
a Net Proceeds Offer following any Asset Sale. The Company shall comply with
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder, if applicable, in the event that an Asset Sale occurs and the
Company is required to purchase Securities as described in this Section 10.17.
Section 10.18 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of Property or the rendering of any
services) with, or for the benefit of, any Affiliate of the Company (other than
the Company or a Restricted Subsidiary), unless (i) such transaction or series
of related transactions is on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than would be available in a
comparable transaction in arm's-length dealings with an unrelated third party,
(ii) with respect to a transaction or series of related transactions involving
aggregate payments in excess of $1,000,000, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and that such transaction or series
of related transactions has been approved by a majority of the Disinterested
Directors of the Company, and (iii) with respect to any one transaction or
series of related transactions involving aggregate payments in excess of
$10,000,000, the Officers' Certificate referred to in clause (ii) above also
certifies that the Company has obtained a written opinion from an independent
nationally recognized investment banking firm or appraisal firm
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specializing or having a speciality in the type and subject matter of the
transaction or series of related transactions at issue, which opinion shall be
to the effect set forth in clause (i) above or shall state that such transaction
or series of related transactions is fair from a financial point of view to the
Company or such Restricted Subsidiary; provided, however, that the foregoing
restriction shall not apply to (w) loans or advances to officers, directors and
employees of the Company or any Restricted Subsidiary made in the ordinary
course of business and consistent with past practices of the Company and its
Restricted Subsidiaries in an aggregate amount not to exceed $1,000,000
outstanding at any one time, (x) indemnities of officers, directors, employees
and other agents of the Company or any Restricted Subsidiary permitted by
corporate charter or other organizational document, bylaw or statutory
provisions, (y) the payment of reasonable and customary regular fees to
directors of the Company or any of its Restricted Subsidiaries who are not
employees of the Company or any Affiliate and (z) the Company's employee
compensation and other benefit arrangements.
Section 10.19 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or suffer to exist or allow to become effective
any consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, or make payments on
any Indebtedness owed, to the Company or any other Restricted Subsidiary, (b) to
make loans or advances to the Company or any other Restricted Subsidiary or (c)
to transfer any of its Property to the Company or any other Restricted
Subsidiary (any such restrictions being collectively referred to herein as a
"Payment Restriction"), except for such encumbrances or restrictions existing
under or by reason of (i) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Company or any
Restricted Subsidiary, or customary restrictions in licenses relating to the
Property covered thereby and entered into in the ordinary course of business,
(ii) any instrument governing Indebtedness of a Person acquired by the Company
or any Restricted Subsidiary at the time of such acquisition, which encumbrance
or restriction is not applicable to any other Person, other than the Person, or
the Property of the Person, so acquired, provided that such Indebtedness was not
incurred in anticipation of such acquisition or (iii) the Bank Credit Facilities
as in effect on the date of this Indenture or any agreement that amends,
modifies, supplements, restates, extends, renews or refinances the Bank Credit
Facilities, provided that the terms and conditions of any Payment Restriction
thereunder are not materially less favorable to the Holders of the Securities
than those under the Bank Credit Facilities as in effect on the date of this
Indenture.
Section 10.20 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.5 through 10.12, Sections 10.14
and 10.15 and Sections 10.18 through 10.19 hereof if, before or after the time
for such compliance, the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities and the Subsidiary Guarantors, by Act of
such Holders and written agreement of the Subsidiary Guarantors, waive
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such compliance in such instance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption.
The Securities may be redeemed, at the election of the Company, as a
whole or from time to time in part, at any time on or after January 15, 2003,
upon not less than 30 or more than 60 days' notice to each Holder of Securities
to be redeemed, subject to the conditions and at the Redemption Prices
(expressed as percentages of principal amount) specified in the form of
Security, together with accrued and unpaid interest, if any, to the Redemption
Date.
In addition, at any time on or prior to January 15, 2001, up to 33 1/3%
of the aggregate principal amount of Original Securities originally issued and
Additional Securities originally issued may be redeemed, at the election of the
Company, upon not less than 30 or more than 60 days' notice to each Holder of
Securities to be redeemed, from the Net Cash Proceeds of a Public Equity
Offering, at the Redemption Price (expressed as a percentage of principal
amount) specified in the form of Security, together with accrued and unpaid
interest, if any, to the Redemption Date, provided that at least 66 2/3% of the
aggregate principal amount of Original Securities originally issued and
Additional Securities originally issued remains Outstanding immediately after
such redemption and that such redemption occurs within 60 days following the
closing of such Public Equity Offering.
Section 11.2 Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
Section 11.3 Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
11.1 hereof shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 11.4 hereof. Any election to
redeem Securities shall be revocable until the Company gives a notice of
redemption pursuant to Section 11.5 hereof to the Holders of Securities to be
redeemed.
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Section 11.4 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 30 days nor more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, pro rata, by lot or by any
other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal of
Securities; provided, however, that any such partial redemption shall be in
integral multiples of $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs of this Section 11.4 shall
not apply with respect to any redemption affecting only a Global Security,
whether such Global Security 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 Global Security shall be in an authorized denomination.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 11.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
15.5 hereof not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal amounts)
of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in Section
11.7 hereof) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that, unless the Company shall default in the
payment of the Redemption Price and any applicable accrued interest, interest
thereon will cease to accrue on and after said date; and
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If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions.
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Failure to give such
notice by mailing to any Holder of Securities or any defect therein shall not
affect the validity of any proceedings for the redemption of other Securities.
Section 11.6 Deposit of Redemption Price.
On or before 11:00 a.m., Eastern time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3 hereof) an amount of money sufficient to pay the
Redemption Price of, and accrued and unpaid interest on, all the Securities
which are to be redeemed on such Redemption Date.
Section 11.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued and unpaid interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued and
unpaid interest, if any, to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.8
hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Securities.
Section 11.8 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 10.2 hereof (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such
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Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal amount of the
Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 12.2 or Section 12.3
hereof be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article XII.
Section 12.2 Defeasance and Discharge.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.2, the Company and the Subsidiary Guarantors shall
be deemed to have been discharged from their respective obligations with respect
to all Outstanding Securities on the date the conditions set forth in Section
12.4 hereof are satisfied (hereinafter, "legal defeasance"). For this purpose,
such legal defeasance means that the Company and the Subsidiary Guarantors shall
be deemed (i) to have paid and discharged their respective obligations under the
Outstanding Securities; provided, however, that the Securities shall continue to
be deemed to be "Outstanding" for purposes of Section 12.5 hereof 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 Securities 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 Securities to receive,
solely from the trust fund described in Section 12.4 hereof and as more fully
set forth in such Section, payments in respect of the principal of (and premium
if any, on) and interest on such Securities when such payments are due (or at
such time as the Securities would be subject to redemption at the option of the
Company in accordance with this Indenture), (B) the respective obligations of
the Company and the Subsidiary Guarantors under Sections 3.3, 3.4, 3.5, 3.6,
3.7, 5.8, 5.14, 6.6, 6.9, 6.10, 10.2, 10.3, 13.1 (to the extent it relates to
the foregoing Sections and this Article XII), 13.4 and 13.5 hereof, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and (D)
the obligations of the Company and the Subsidiary Guarantors under this Article
XII. Subject to compliance with this Article XII, the Company may exercise its
option under this Section 12.2 notwithstanding the prior exercise of its option
under Section 12.3 hereof with respect to the Securities.
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Section 12.3 Covenant Defeasance.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.3, the Company and each Subsidiary Guarantor shall
be released from their respective obligations under any covenant contained in
Article VIII, in Sections 10.5 through 10.19 and in Section 13.2 hereof with
respect to the Outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities, the Company and each Subsidiary Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(c) or 5.1(d) hereof, but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 12.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
12.2 or Section 12.3 hereof to the Outstanding Securities:
(a) The Company or any Subsidiary Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.7 hereof who shall agree to comply with
the provisions of this Article XII applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities, (A)
cash in United States dollars in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (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 premium,
if any, on) and interest on the Outstanding Securities 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 U.S. Government Obligations to said payments with
respect to the Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 11.3 hereof, a notice of its election to
redeem all of the Outstanding Securities at a future date in accordance with
Article XI hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
For this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or
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supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(b) No Default or Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1(h) and 5.1(i) are 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 securities of the Company or any Subsidiary
Guarantor.
(d) Such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other material
agreement or instrument to which the Company or any Subsidiary Guarantor is a
party or by which it is bound, as evidenced to the Trustee in an Officers'
Certificate delivered to the Trustee concurrently with such deposit.
(e) In the case of an election under Section 12.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax laws, in either case providing that
the Holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such legal defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such legal defeasance had
not occurred (it being understood that (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).
(f) In the case of an election under Section 12.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.
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(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 12.2 hereof or the covenant defeasance under Section 12.3 (as the case
may be) have been complied with.
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held
in Trust: Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 12.5, the "Trustee") pursuant to Section 12.4 hereof in
respect of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through, any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against all taxes, fees
or other charges imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 12.4 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
Anything in this Article XII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.4
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent legal defeasance or covenant defeasance, as
applicable, in accordance with this Article.
Section 12.6 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 12.5 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and the Subsidiary Guarantors' obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 12.2 or 12.3 hereof, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 12.5 hereof; provided, however,
that if the Company or any Subsidiary Guarantor makes any payment of principal
of (or premium, if any, on) or interest on any Security following the
reinstatement of its obligations, the Company or such Subsidiary Guarantor shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE XIII
SUBSIDIARY GUARANTEES
Section 13.1 Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and severally,
guarantees (each such guarantee being referred to herein as this "Subsidiary
Guarantee," with all such guarantees being referred to herein as the "Subsidiary
Guarantees") to each Holder of Securities authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the full and prompt
performance of the Company's obligations under this Indenture and the Securities
and that:
(a) the principal of (and premium, if any, on) and interest on the
Securities will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Securities, if any, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any
Securities or of any such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise:
subject, however, in the case of clauses (a) and (b) above, to the limitations
set forth in Section 13.4 hereof.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately. Each Subsidiary Guarantor
hereby agrees that its obligations hereunder shall, to the extent permitted by
law, be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives, to the extent permitted by
law, diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and in this Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company, any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Subsidiary Guarantor, any amount paid
by the Company or any Subsidiary Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and
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effect. Each Subsidiary Guarantor agrees it shall not be entitled to enforce any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Subsidiary Guarantor further agrees that, as between each Subsidiary
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article V hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article V hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.
Section 13.2 Subsidiary Guarantors May Consolidate. etc.. on Certain
Terms.
(a) Except as set forth in Article VIII hereof, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor or shall prevent any sale, conveyance or other disposition of all or
substantially all the Properties of a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor.
(b) Except as set forth in Article VIII hereof, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of a Subsidiary Guarantor with or into a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor), or successive consolidations or mergers in which a Subsidiary
Guarantor or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or other disposition of all or substantially all
the Properties of a Subsidiary Guarantor to a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor) authorized to acquire and operate the same; provided, however, that
(i) immediately after such transaction, and giving effect thereto, no Default or
Event of Default shall have occurred as a result of such transaction and be
continuing, (ii) such transaction shall not violate any of the covenants of
Sections 10.1 through 10.19 hereof, and (iii) each Subsidiary Guarantor hereby
covenants and agrees that, upon any such consolidation, merger, sale, conveyance
or other disposition, such Subsidiary Guarantor's Subsidiary Guarantee set forth
in this Article XIII and in a notation to the Securities, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by such Subsidiary Guarantor, shall be expressly
assumed (in the event that the Subsidiary Guarantor is not the surviving
corporation in a merger), by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by such Person formed by such
consolidation, or into which the Subsidiary Guarantor shall have merged, or by
the Person that shall have acquired such Property (except to the extent the
following Section 13.3 would result in the release of such Subsidiary Guarantee,
in which case such surviving Person or transferee of such Property shall not
have to execute any such supplemental indenture and shall not have to assume
such Subsidiary Guarantor's Subsidiary Guarantee). In the case of any such
consolidation, merger, sale, conveyance or other disposition and upon the
assumption by the successor Person, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants and conditions of this
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Indenture to be performed by the Subsidiary Guarantor, such successor Person
shall succeed to and be substituted for the Subsidiary Guarantor with the same
effect as if it had been named herein as the initial Subsidiary Guarantor.
Section 13.3 Release of Subsidiary Guarantors.
Upon the sale or disposition (by merger or otherwise) of a Subsidiary
Guarantor (or all or substantially all of its Properties) to a Person other than
the Company or another Subsidiary Guarantor and pursuant to a transaction that
is otherwise in compliance with the terms of this Indenture, including but not
limited to the provisions of Section 13.2 hereof or pursuant to Article VIII
hereof, such Subsidiary Guarantor shall be deemed released from its Subsidiary
Guarantee and all related obligations under this Indenture; provided, however,
that any such release shall occur only to the extent that all obligations of
such Subsidiary Guarantor under all of its guarantees of, and under all of its
pledges of assets or other security interests which secure, other Indebtedness
of the Company or any other Restricted Subsidiary shall also be released upon
such sale or other disposition. The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a Company Request accompanied
by an Officers' Certificate and an Opinion of Counsel certifying that such sale
or other disposition was made by the Company in accordance with the provisions
of this Indenture. Each Subsidiary Guarantor that is designated as an
Unrestricted Subsidiary in accordance with the provisions of this Indenture
shall be released from its Subsidiary Guarantee and all related obligations
under this Indenture for so long as it remains an Unrestricted Subsidiary. The
Trustee shall deliver an appropriate instrument evidencing such release upon its
receipt of the Board Resolution designating such Unrestricted Subsidiary. Any
Subsidiary Guarantor not released in accordance with this Section 13.3 shall
remain liable for the full amount of principal of (and premium, if any, on) and
interest on the Securities as provided in this Article XIII.
Section 13.4 Limitation of Subsidiary Guarantors' Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirm that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 13.5 hereof,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting such a fraudulent conveyance or fraudulent transfer.
This Section 13.4 is for the benefit of the creditors of each Subsidiary
Guarantor.
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Section 13.5 Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor (if
any) in a pro rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Subsidiary Guarantor's
obligations with respect to its Subsidiary Guarantee.
Section 13.6 Execution and Delivery of Notations of Subsidiary
Guarantees.
To evidence its Subsidiary Guarantee set forth in Section 13.1 hereof,
each Subsidiary Guarantor hereby agrees to execute the notations of Subsidiary
Guarantees in substantially the form set forth in Section 2.4 hereof to be
endorsed on all Securities ordered to be authenticated and delivered by the
Trustee, and each Subsidiary Guarantor agrees that this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its President or one of its
Vice Presidents. Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 13.1 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Subsidiary Guarantee. Each such notation of Subsidiary Guarantee shall be signed
on behalf of each Subsidiary Guarantor by its President or one of its Vice
Presidents (each of whom shall, in each case, have been duly authorized by all
requisite corporate action) prior to the authentication of the Security on which
it is endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of such Subsidiary
Guarantor. Such signatures upon the notation of Subsidiary Guarantee may be by
manual or facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Subsidiary Guarantee, and in case any such officer who shall
have signed the notation of Subsidiary Guarantee shall cease to be such officer
before the Security on which such notation of Subsidiary Guarantee is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed the notation of Subsidiary Guarantee
had not ceased to be such officer of the Subsidiary Guarantor.
Section 13.7 Severability.
In case any provision of this Subsidiary Guarantee shall be invalid,
illegal or unenforceable, that portion of such provision that is not invalid,
illegal or unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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Section 13.8 Subordination of Subsidiary Guarantees.
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee pursuant to this Article XIII shall be subordinated to the Senior
Indebtedness of such Subsidiary Guarantor to the same extent and in the same
manner as the Securities are subordinated to Senior Indebtedness of the Company.
For the purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive or retain payments by any of the Subsidiary Guarantors
only at such times as they may receive or retain payments in respect of the
Securities pursuant to this Indenture, including Article XIV hereof.
ARTICLE XIV
SUBORDINATION
Section 14.1 Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security agrees, that
the Indebtedness evidenced by each Security is subordinated in right of payment,
to the extent and in the manner provided in this Article XIV, to the prior
payment in full of all Senior Indebtedness (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed) and that the
subordination is for the benefit of the holders of Senior Indebtedness.
Section 14.2 Certain Definitions.
"Bankruptcy Law" means the Federal Bankruptcy Code or any similar federal
or state law for the relief of debtors.
"Obligations" means any principal, interest, penalties, fees,
indemnities, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
A "distribution" may consist of cash, securities or other property, by
set-off or otherwise.
All Designated Senior Indebtedness now or hereafter existing and all
other Obligations relating thereto shall not be deemed to have been paid in full
unless the holders or owners thereof shall have received payment in full in cash
(or other form of payment consented to by the holders of Designated Senior
Indebtedness) of all such Designated Senior Indebtedness and all other
Obligations with respect thereto and the holders or owners thereof have no
further commitment or obligation to readvance funds under the related Bank
Credit Facility or other credit agreement, indenture or other financing
arrangement.
All references to "Designated Senior Indebtedness" in this Article XIV
are to Designated Senior Indebtedness of the Company.
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Section 14.3 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, or
in an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all Obligations due in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness)
before the Holders of Securities shall be entitled to receive any payment
with respect to the Securities (except that Holders of Securities may
receive (i) securities that are subordinated to at least the same extent
as the Securities to (a) Senior Indebtedness and (b) any securities
issued in exchange for Senior Indebtedness, provided that the operation
of this clause (b) shall not cause the Securities to be treated in any
case or proceeding or similar event described in this Section 14.3 in the
same class of claims as the Senior Indebtedness or any class of claims
pari passu with the Senior Indebtedness for any payment or other
distribution and (ii) payments and other distributions made from any
defeasance trust created pursuant to Article XII hereof); and
(2) until all Obligations with respect to Senior Indebtedness (as
provided in subsection (1) above) are paid in full, any distribution to
which the Holders of Securities would be entitled shall be made to
holders of Senior Indebtedness (except that Holders of Securities may
receive (i) securities that are subordinated at least to the same extent
as the Securities to (a) Senior Indebtedness and (b) any securities
issued in exchange for Senior Indebtedness, provided that the operation
of this clause (b) shall not cause the Securities to be treated in any
case or proceeding or similar event described in this Section 14.3 in the
same class of claims as the Senior Indebtedness or any class of claims
pari passu with the Senior Indebtedness for any payment or other
distribution and (ii) payments and other distributions made from any
defeasance trust created pursuant to Article XII hereof).
Under the circumstances described in this Section 14.3, the Company or any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making any payment or distribution of cash or other property is
authorized or instructed to make any payment or distribution to which the
Holders of the Securities would otherwise be entitled (other than the
distributions made in subordinated securities or from any defeasance trust
referred to in the second parenthetical clause of each of clauses (1) and (2)
above, which shall be delivered or paid to the Holders of Securities as set
forth in such clauses) directly to the holders of the Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their Representatives, as their respective
interests appear, to the extent necessary to pay all such Senior Indebtedness in
full, after giving effect to any concurrent payment or other distribution or
provision therefor to or for the holders of such Senior Indebtedness.
To the extent any payment of Senior Indebtedness (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared
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to be fraudulent or preferentially set aside or required to be paid to any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then if such payment is recovered by, or paid over to, such
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person, the Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Indebtedness
is declared to be fraudulent, invalid or otherwise set aside under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
to the extent permitted by law the obligation so declared fraudulent, invalid or
otherwise set aside (and all other amounts that would come due with respect
thereto had such obligation not been so affected) shall be deemed to be
reinstated and outstanding as Senior Indebtedness for all purposes hereof as if
such declaration, invalidity or setting aside had not occurred.
Section 14.4 Default on Designated Senior Indebtedness.
The Company may not make any payment or other distribution to the Trustee
or any Holder in respect of Obligations to the Holders with respect to the
Securities and may not acquire from the Trustee or any Holder any Securities for
cash or other property (other than (i) securities that are subordinated to at
least the same extent as the Securities to (a) Senior Indebtedness and (b) any
securities issued in exchange for Senior Indebtedness, provided that the
operation of this clause (b) shall not cause the Securities to be treated in any
case or proceeding or similar event described in Section 14.3 in the same class
of claims as the Senior Indebtedness or any class of claims pari passu with the
Senior Indebtedness for any payment or other distribution and (ii) payments and
other distributions made from any defeasance trust created pursuant to Article
XII hereof) until all principal and other Obligations with respect to the Senior
Indebtedness have been paid in full if:
(i) a default in the payment of any principal or other Obligations
with respect to Designated Senior Indebtedness occurs and is continuing
beyond any applicable grace period in the agreement, indenture or other
document governing such Designated Senior Indebtedness; or
(ii) a default, other than a payment default, with respect to
Designated Senior Indebtedness occurs and is continuing that then
permits, or with the giving of notice or passage of time or both (unless
cured or waived) would permit, holders of the Designated Senior
Indebtedness as to which such default relates to accelerate its maturity
and the Trustee receives a notice of such default (a "Payment Blockage
Notice") from a holder (or its Representative) of Designated Senior
Indebtedness pursuant to Section 14.12 hereof. If the Trustee receives
any such Payment Blockage Notice, no subsequent Payment Blockage Notice
shall be effective for the purposes of this Section unless and until (i)
at least 360 days shall have elapsed since the date of commencement of
the payment blockage period resulting from the immediately prior Payment
Blockage Notice and (ii) all scheduled payments of principal, premium, if
any, and interest on the Securities that have come due have been paid in
full in cash. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be,
or be made,
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the basis for a subsequent Payment Blockage Notice, unless such default
shall have been cured or waived for at least one full 90 consecutive day
period commencing after the date of delivery of such Payment Blockage
Notice.
The Company shall resume payments on and other distributions in respect
of the Securities and may acquire them upon the earliest of:
(1) the date upon which the default is cured or waived or has
ceased to exist,
(2) the holders of such Designated Senior Indebtedness have agreed
to such resumption or such Designated Senior Indebtedness has been paid
in full, or
(3) In the case of a default referred to in Section 14.4(ii)
hereof, 179 days past the date on which the Payment Blockage Notice is
received if the maturity of such Designated Senior Indebtedness has not
been accelerated (or, if it has been accelerated, such acceleration has
been rescinded or annulled),
if this Article XIV otherwise permits the payment, distribution or acquisition
at the time of such payment or acquisition.
In no event will a payment blockage period referred to in Section
14.4(ii) hereof extend beyond 179 days from the date of the receipt by the
Trustee of the Payment Blockage Notice relating thereto and there must be a 181
consecutive day period in any 360-day period during which no such payment
blockage period is in effect.
Section 14.5 Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
Section 14.6 When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Securities at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Section 14.3 or Section 14.4 hereof, such payment shall be held by the Trustee
or such Holder, in trust for the benefit of, and shall be forthwith paid over
and delivered to the holders of Senior Indebtedness or their Representative, as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Indebtedness remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or other distribution to or for the
holders of Senior Indebtedness.
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With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XIV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness.
Section 14.7 Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would prohibit the making of a payment of any
Obligations with respect to the Securities under this Article XIV, but failure
to give such notice shall not affect the subordination of the Securities to the
Senior Indebtedness as provided in this Article XIV.
Section 14.8 Subrogation.
Subject to the payment in full of all Senior Indebtedness and until the
Securities are paid in full, Holders of Securities shall be subrogated (equally
and ratably with all other Pari Passu Indebtedness) to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness
to the extent that distributions otherwise payable to the Holders of Securities
have been applied to the payment of Senior Indebtedness. A distribution made
under this Article XIV to holders of Senior Indebtedness that otherwise would
have been made to Holders of Securities is not, as between the Company and
Holders of Securities, a payment by the Company on the Securities.
Section 14.9 Relative Rights.
This Article XIV defines the relative rights of Holders of Indebtedness
and holders of Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Securities, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Securities in
accordance with their terms;
(2) affect the relative rights of Holders of Securities and
creditors of the Company other than their rights in relation to holders
of Senior Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtness to receive payments and
other distributions otherwise payable to Holders of Securities in
accordance with this Article XIV.
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If the Company fails because of this Article XIV to pay principal of,
premium, if any, or interest on a Security when due or within any applicable
grace period, such failure is still a Default or Event of Default in accordance
with Section 5.1 hereof.
Section 14.10 Subordination May Not Be Impaired by Company.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided in this Article XIV will at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any holder of Senior Indebtedness may
have or otherwise be charged with. The provisions of this Article XIV are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
Section 14.11 Distribution or Notice to Representative.
Whenever a payment or other distribution is to be made or a notice given
to holders of Senior Indebtedness, the payment or other distribution may be made
and the notice given to their Representative, if they have one.
Upon any payment or other distribution of assets of the Company referred
to in this Article XIV, the Trustee and the Holders of Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of any such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Securities for the purpose of ascertaining the
Persons entitled to participate in such payment or other distribution, the
holders of the Senior Indebtedness and other Indebtedness of the Company, the
amount thereof or of the obligations relating thereto or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XIV.
Section 14.12 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article XIV or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or other
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments and other distributions on the Securities, unless the Trustee
shall have received at its Corporate Trust Office at least two Business Days
prior to the date of such payment or other distribution written notice of facts
that would cause the payment of or other distribution in respect of any
Obligations with respect to the Securities to violate this Article XIV, which
notice may be given by the Company or the holders of any Senior Indebtedness or
their Representative, and shall specifically refer to Section 14.4 hereof.
Nothing in this Article XIV shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.6 hereof.
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The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Paying Agent and Security Registrar may do the same with like rights.
Section 14.13 Authorization to Effect Subordination.
Each Holder by the Holder's acceptance thereof authorizes and directs the
Trustee on the Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XIV, and
appoints the Trustee to act as the Holder's attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 5.4 hereof at
least ten days before the expiration of the time to file such claim, the holders
of Senior Indebtedness and their Representatives, are hereby authorized (but in
no way obligated) to file an appropriate claim for and on behalf of the Holders
of Securities.
Section 14.14 Amendments.
The provisions of this Article XIV shall not be amended or modified
without the written consent of the holders of all Senior Indebtedness (or their
Representatives).
Section 14.15 No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 14.9 of this
Indenture, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article XIV or the obligations
hereunder of the Trustee and the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or such Subsidiary Guarantor, as the case may be, shall
furnish to the Trustee such certificates and opinions as may
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be required under the Trust Indenture Act or this Indenture. Each such
certificate and each such legal opinion shall be in the form of an Officers'
Certificate or an Opinion of Counsel, as applicable, and shall comply with the
requirements of this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition 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;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 15.1 and
the statements required by this Section 15.1 shall comply in all respects with
TIA Sections 314(c) and (e).
Section 15.2 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such Opinion of Counsel may be based, insofar as it relates to factual matters,
upon an officers' certificate, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 15.3 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
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Act, and for that purpose the Outstanding Securities shall be computed as of
such record date, provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary
Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to or filed with,
(1) the Trustee by any Holder, the Company, any Subsidiary Guarantor or
any holder of Senior Indebtedness shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (in the English
language) and delivered in person or mailed by certified or registered
mail (return receipt requested) to the Trustee at its Corporate Trust
Office, attention: KCS Energy, Inc. 8 7/8% Senior Subordinated Notes due
2008; or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing (in the English language) and
delivered in person or mailed by certified or registered mail (return
receipt requested) to the Company or such Subsidiary Guarantor, as
applicable, addressed to it at the Company's offices located at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Treasurer, or at
any other address otherwise furnished in writing to the Trustee by the
Company.
Section 15.5 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing (in the English language) and
mailed, first-class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. Where this Indenture provides for
notice in any manner, such notice may be
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waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
Section 15.6 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 15.7 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 15.8 Severability.
In case any provision in this Indenture or in the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
Section 15.9 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, the Holders and, to the
extent set forth in Section 13.4 hereof, creditors of Subsidiary Guarantors and
the holders of Senior Indebtedness) any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 15.10 Governing Law; Trust Indenture Act Controls.
(a) THIS INDENTURE, THE SUBSIDIARY GUARANTEES AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK. THE COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY SUBMIT TO THE
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XXX-XXXXXXXXX XXXXXXXXXXXX XX XXX XXXXXX XXXXXX FEDERAL OR NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
SUBSIDIARY GUARANTEES, AND THE COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED BY ANY SUCH COURT.
(b) This Indenture is subject to the provisions of the Trust Indenture
Act that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by operation of Section 318(c) of the Trust Indenture Act, or conflicts
with any provision (an "incorporated provision") required by or deemed to be
included in this Indenture by operation of such Trust Indenture Act section,
such imposed duties or incorporated provision shall control.
Section 15.11 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, or Stated
Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities or
the Subsidiary Guarantee) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity or Maturity; provided, however, that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
Section 15.12 No Recourse Against Others.
A director, officer, employee, stockholder, incorporator or Affiliate, as
such, past, present or future, of the Company or any Subsidiary Guarantor shall
not have any personal liability under the Securities or this Indenture by reason
of his or its status as a director, officer, employee, stockholder, incorporator
or Affiliate or any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder, by accepting any of the Securities, waives and releases all such
liability to the extent permitted by applicable law.
Section 15.13 Duplicate Originals.
The parties may sign any number of copies or counterparts of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
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Section 15.14 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
ISSUER:
KCS ENERGY, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
SUBSIDIARY GUARANTORS:
KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS ENERGY MARKETING, INC.,
KCS MEDALLION RESOURCES, INC.,
KCS ENERGY SERVICES, INC.,
MEDALLION CALIFORNIA
PROPERTIES CO.,
MEDALLION GAS SERVICES, INC.,
NATIONAL ENERDRILL CORPORATION and
PROLIQ, INC.
By: /s/ XXXXX XXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By:
------------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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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.
ISSUER:
KCS ENERGY, INC.
By:
------------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SUBSIDIARY GUARANTORS:
KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS ENERGY MARKETING, INC.,
KCS MEDALLION RESOURCES, INC.,
KCS ENERGY SERVICES, INC.,
MEDALLION CALIFORNIA PROPERTIES CO.,
MEDALLION GAS SERVICES, INC.,
NATIONAL ENERDRILL CORPORATION and
PROLIQ, INC.
By:
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
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EXHIBIT A
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OF ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
A-1
