Exhibit No. 4.1
FLORES & RUCKS, INC.
SUBSIDIARY GUARANTORS
Named Herein
AND
FLEET NATIONAL BANK
Trustee
----------------------
Indenture
Dated as of September 26, 1996
----------------------
$160,000,000
9 3/4% Senior Subordinated Notes due 2006
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Page
Section 1.1 Definitions..........................................................................2
Section 1.2 Other Definitions...................................................................29
Section 1.3 Incorporation by Reference of Trust Indenture Act...................................29
Section 1.4 Rules of Construction...............................................................30
ARTICLE II - SECURITY FORMS
Section 2.1 Forms Generally.....................................................................30
Section 2.2 Form of Face of Security............................................................31
Section 2.3 Form of Reverse of Security.........................................................33
Section 2.4 Form of Notation Relating to Subsidiary Guarantees..................................37
Section 2.5 Form of Trustee's Certificate of Authentication.....................................39
ARTICLE III - THE SECURITIES
Section 3.1 Title and Terms.....................................................................39
Section 3.2 Denominations.......................................................................40
Section 3.3 Execution, Authentication, Delivery and Dating......................................40
Section 3.4 Temporary Securities................................................................41
Section 3.5 Registration, Registration of Transfer and Exchange.................................41
Section 3.6 Book-Entry Provisions for Global Security...........................................42
Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities....................................43
Section 3.8 Payment of Interest; Interest Rights Preserved......................................44
Section 3.9 Persons Deemed Owners...............................................................45
Section 3.10 Cancellation........................................................................45
Section 3.11 Computation of Interest.............................................................45
ARTICLE IV - SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.............................................46
Section 4.2 Application of Trust Money..........................................................47
ARTICLE V - REMEDIES
Section 5.1 Events of Default...................................................................47
Section 5.2 Acceleration of Maturity; Rescission and Annulment..................................49
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee......... ...........51
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Section 5.4 Trustee May File Proofs of Claim....................................................52
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.........................52
Section 5.6 Application of Money Collected......................................................52
Section 5.7 Limitation on Suits.................................................................53
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest
53
Section 5.9 Restoration of Rights and Remedies..................................................54
Section 5.10 Rights and Remedies Cumulative......................................................54
Section 5.11 Delay or Omission Not Waiver........................................................54
Section 5.12 Control by Holders..................................................................54
Section 5.13 Waiver of Past Defaults.............................................................54
Section 5.14 Waiver of Stay, Extension or Usury Laws.............................................55
ARTICLE VI - THE TRUSTEE
Section 6.1 Notice of Defaults..................................................................55
Section 6.2 Certain Rights of Trustee...........................................................55
Section 6.3 Trustee Not Responsible for Recitals or Issuance of Securities......................56
Section 6.4 May Hold Securities.................................................................57
Section 6.5 Money Held in Trust.................................................................57
Section 6.6 Compensation and Reimbursement......................................................57
Section 6.7 Corporate Trustee Required; Eligibility.............................................58
Section 6.8 Conflicting Interests...............................................................58
Section 6.9 Resignation and Removal; Appointment of Successor...................................58
Section 6.10 Acceptance of Appointment by Successor..............................................59
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.........................59
Section 6.12 Preferential Collection of Claims Against Company...................................60
ARTICLE VII - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders........................................60
Section 7.2 Reports By Trustee..................................................................60
Section 7.3 Reports by Company..................................................................60
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only on Certain Terms................................61
Section 8.2 Successor Substituted...............................................................63
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders..................................63
Section 9.2 Supplemental Indentures with Consent of Holders.....................................64
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Section 9.3 Execution of Supplemental Indentures................................................65
Section 9.4 Effect of Supplemental Indentures...................................................65
Section 9.5 Conformity with Trust Indenture Act.................................................65
Section 9.6 Reference in Securities to Supplemental Indentures..................................65
Section 9.7 Notice of Supplemental Indentures...................................................65
ARTICLE X - COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and Interest.................................66
Section 10.2 Maintenance of Office or Agency.....................................................66
Section 10.3 Money for Security Payments to Be Held in Trust.....................................66
Section 10.4 Corporate Existence.................................................................67
Section 10.5 Payment of Taxes and Other Claims...................................................68
Section 10.6 Maintenance of Properties...........................................................68
Section 10.7 Insurance...........................................................................68
Section 10.8 Statement by Officers as to Default.................................................68
Section 10.9 Provision of Financial Information..................................................69
Section 10.10 Limitation on Restricted Payments...................................................69
Section 10.11 Limitation on Indebtedness..........................................................73
Section 10.12 Limitation on Guarantees of Indebtedness by Subsidiaries............................73
Section 10.13 Limitation on Issuances and Sale of Capital Stock by Restricted Subsidiaries
...................................................................................74
Section 10.14 Limitation on Liens.................................................................74
Section 10.15 Purchase of Securities Upon Change of Control.......................................74
Section 10.16 Disposition of Proceeds of Asset Sales..............................................76
Section 10.17 Limitation on Transactions with Affiliates..........................................78
Section 10.18 Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.............................................................79
Section 10.19 Limitation on Conduct of Business...................................................79
Section 10.20 Waiver of Certain Covenants.........................................................79
ARTICLE XI - REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption.................................................................80
Section 11.2 Applicability of Article............................................................80
Section 11.3 Election to Redeem; Notice to Trustee...............................................80
Section 11.4 Selection by Trustee of Securities to Be Redeemed...................................80
Section 11.5 Notice of Redemption................................................................80
Section 11.6 Deposit of Redemption Price.........................................................81
Section 11.7 Securities Payable on Redemption Date...............................................81
Section 11.8 Securities Redeemed in Part.........................................................82
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ARTICLE XII - DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or Covenant Defeasance........................82
Section 12.2 Defeasance and Discharge............................................................82
Section 12.3 Covenant Defeasance.................................................................82
Section 12.4 Conditions to Defeasance or Covenant Defeasance.....................................83
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions......................................................84
Section 12.6 Reinstatement.......................................................................85
ARTICLE XIII - GUARANTEES
Section 13.1 Unconditional Guarantee.............................................................85
Section 13.2 Subsidiary Guarantors May Consolidate, etc., on Certain Terms.......................86
Section 13.3 Release of a Subsidiary Guarantor...................................................87
Section 13.4 Limitation of Subsidiary Guarantor's Liability......................................87
Section 13.5 Contribution........................................................................88
Section 13.6 Execution and Delivery of Notation of Subsidiary Guarantee..........................88
Section 13.7 Severability........................................................................89
Section 13.8 Subsidiary Guarantees Subordinated to Guarantor Senior Indebtedness
...................................................................................89
Section 13.9 Subsidiary Guarantors Not to Make Payments with Respect to Subsidiary
Guarantees in Certain Circumstances.................................................89
Section 13.10 Subsidiary Guarantees Subordinated to Prior Payment of All Guarantor
Senior Indebtedness upon Dissolution, etc...........................................90
Section 13.11 Holders to be Subrogated to Rights of Holders of Guarantor Senior
Indebtedness........................................................................91
Section 13.12 Obligations of the Subsidiary Guarantors Unconditional..............................92
Section 13.13 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice..............................................................................92
Section 13.14 Application by Trustee of Money Deposited with it...................................93
Section 13.15 Subordination Rights Not Impaired by Acts or Omissions of Subsidiary
Guarantors or Holders of Guarantor Senior Indebtedness..............................93
Section 13.16 Holders Authorize Trustee to Effectuate Subordination of Subsidiary
Guarantees..........................................................................94
Section 13.17 Right of Trustee to Hold Guarantor Senior Indebtedness..............................94
Section 13.18 Article XIII Not to Prevent Events of Default.......................................94
Section 13.19 Payment.............................................................................94
ARTICLE XIV - SUBORDINATION OF SECURITIES
Section 14.1 Securities Subordinate to Senior Indebtedness.......................................94
Section 14.2 Payment Over of Proceeds upon Dissolution, etc......................................95
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Section 14.3 Suspension of Payment When Senior Indebtedness in Default...........................96
Section 14.4 Trustee's Relation to Senior Indebtedness...........................................97
Section 14.5 Subrogation to Rights of Holders of Senior Indebtedness.............................97
Section 14.6 Provisions Solely To Define Relative Rights.........................................98
Section 14.7 Trustee To Effectuate Subordination.................................................98
Section 14.8 No Waiver of Subordination Provisions...............................................98
Section 14.9 Notice to Trustee...................................................................99
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent.....................100
Section 14.11 Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights...................................................................100
Section 14.12 Article Applicable to Paying Agents................................................100
Section 14.13 No Suspension of Remedies..........................................................100
ARTICLE XV - MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions...............................................100
Section 15.2 Form of Documents Delivered to Trustee.............................................101
Section 15.3 Acts of Holders....................................................................101
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors........................102
Section 15.5 Notice to Holders; Waiver..........................................................103
Section 15.6 Effect of Headings and Table of Contents...........................................103
Section 15.7 Successors and Assigns.............................................................103
Section 15.8 Separability Clause................................................................104
Section 15.9 Benefits of Indenture..............................................................104
Section 15.10 Governing Law; Trust Indenture Act Controls........................................104
Section 15.11 Legal Holidays.....................................................................104
Section 15.12 No Recourse Against Others.........................................................105
Section 15.13 Duplicate Originals................................................................105
Section 15.14 No Adverse Interpretation of Other Agreements......................................105
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of __________, 1996
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) ................................. 6.7
(a)(2) ................................. 6.7
(b) ................................. 6.7, 6.8
Section 312(c) ................................. 7.1
Section 313 ................................. 7.2
Section 314(a) ................................. 7.3
(a)(4) ................................. 10.8(a)
(c)(1) ................................. 15.1
(c)(2) ................................. 15.1
(e) ................................. 15.1
Section 315(b) ................................. 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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INDENTURE, dated as of September 26, 1996 between FLORES & RUCKS, INC.,
a Delaware corporation (hereinafter called the "Company"), the SUBSIDIARY
GUARANTORS (as defined hereinafter) and FLEET NATIONAL BANK, trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 9 3/4%
Senior Subordinated Notes due 2006 (herein, as amended or supplemented from time
to time in accordance with the terms hereof, called the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
The Company owns beneficially and of record all of the equity ownership
of the outstanding Voting Stock of the initial Subsidiary Guarantor, and the
initial Subsidiary Guarantor is a member of the Company's consolidated group of
companies that are engaged in related businesses. The initial Subsidiary
Guarantor will derive direct and indirect benefit from the issuance of the
Securities; accordingly, the 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 Guarantor has 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 to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, to make the
Subsidiary Guarantee, when executed by the Subsidiary Guarantor, the valid
obligation of the Subsidiary Guarantor and to make this Indenture a valid
agreement of the Company, the Subsidiary Guarantor and the Trustee, in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities (together with the related Subsidiary Guarantee) 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
Guarantee), as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person, (b) outstanding at the
time such Person becomes a Subsidiary of any other Person (other than any
Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Subsidiary) or (c) any renewals,
extensions, substitutions, refinancings or replacements (each, for purposes of
this clause, a "refinancing") by the Company of any Indebtedness described in
clause (a) or (b) of this definition, including any successive refinancings, so
long as (i) any such new Indebtedness shall be in a principal amount that does
not exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as of the
date of determination) so refinanced plus the amount of any premium required to
be paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined by
the Company as necessary to accomplish such refinancing, plus the amount of
expenses of the Company incurred in connection with such refinancing, and (ii)
in the case of any refinancing of Subordinated Indebtedness, such new
Indebtedness is made subordinate to the Securities at least to the same extent
as the Indebtedness being refinanced and (iii) such new Indebtedness has an
Average Life longer than the Average Life of the Securities and a final Stated
Maturity later than the final Stated Maturity of the Securities.
"Act," when used with respect to any Holder, has the meaning specified
in Section 15.3.
"Adjusted Consolidated Net Tangible Assets" means (without
duplication), as of the date of determination, (a) the sum of (i) discounted
future net revenues from proved oil and gas reserves of the Company and its
Restricted Subsidiaries calculated in accordance with SEC guidelines before any
state or federal income taxes, as estimated by a nationally recognized firm of
independent petroleum engineers in a reserve report prepared as of the end of
the Company's most recently completed fiscal year, as increased by, as of the
date of determination, the estimated discounted future net revenues from (A)
estimated proved oil and gas reserves acquired since the date of such year-end
reserve report, and (B) estimated oil and gas reserves attributable to upward
revisions of estimates of proved oil and gas reserves since the date of such
year-end reserve report due to exploration, development or exploitation
activities, in each case calculated in accordance with SEC guidelines (utilizing
the prices utilized in such year-end reserve report), and decreased by, as of
the date of determination, the estimated discounted future net revenues from (C)
estimated proved oil and gas reserves produced or disposed of since the date of
such year-end reserve report and (D) estimated oil and gas reserves attributable
to downward revisions of estimates of proved oil and gas reserves since the date
of such year-end reserve report due to changes in geological conditions or other
factors which would, in accordance with standard industry practice, cause such
revisions, in
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each case calculated in accordance with SEC guidelines (utilizing the prices
utilized in such year-end reserve report); provided that, in the case of each of
the determinations made pursuant to clauses (A) through (D), such increases and
decreases shall be as estimated by the Company's petroleum engineers, unless in
the event that there is a Material Change as a result of such acquisitions,
dispositions or revisions, then the discounted future net revenues utilized for
purposes of this clause (a)(i) shall be confirmed in writing by a nationally
recognized firm of independent petroleum engineers, (ii) the capitalized costs
that are attributable to oil and gas properties of the Company and its
Restricted Subsidiaries to which no proved oil and gas reserves are
attributable, based on the Company's books and records as of a date no earlier
than the date of the Company's latest annual or quarterly financial statements,
(iii) the Net Working Capital on a date no earlier than the date of the
Company's latest annual or quarterly financial statements and (iv) the greater
of (I) the net book value on a date no earlier than the date of the Company's
latest annual or quarterly financial statements or (II) the appraised value, as
estimated by independent appraisers, of other tangible assets (including,
without duplication, Investments in unconsolidated Restricted Subsidiaries) of
the Company and its Restricted Subsidiaries, as of the date no earlier than the
date of the Company's latest audited financial statements, minus (b) the sum of
(i) minority interests, (ii) any gas balancing liabilities of the Company and
its Restricted Subsidiaries reflected in the Company's latest audited financial
statements, (iii) to the extent included in (a)(i) above, the discounted future
net revenues, calculated in accordance with SEC guidelines (utilizing the prices
utilized in the Company's year-end reserve report), attributable to reserves
which are required to be delivered to third parties to fully satisfy the
obligations of the Company and its Restricted Subsidiaries with respect to
Volumetric Production Payments on the schedules specified with respect thereto
and (iv) the discounted future net revenues, calculated in accordance with SEC
guidelines, attributable to reserves subject to Dollar-Denominated Production
Payments which, based on the estimates of production and price assumptions
included in determining the discounted future net revenues specified in (a)(i)
above, would be necessary to fully satisfy the payment obligations of the
Company and its Restricted Subsidiaries with respect to Dollar-Denominated
Production Payments on the schedules specified with respect thereto. If the
Company changes its method of accounting from the full cost method to the
successful efforts method or a similar method of accounting, "Adjusted
Consolidated Net Tangible Assets" will continue to be calculated as if the
Company was still using the full cost method of accounting.
"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 the 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
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"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 Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or any Restricted Subsidiary shall be merged with
or into the Company or any other Restricted Subsidiary or (b) the acquisition by
the Company or any Restricted Subsidiary of the Properties of any Person which
constitute all or substantially all of the Properties of such Person or any
division or line of business 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 means of a Sale/Leaseback
Transaction or 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 a disposition of hydrocarbons or other
mineral products in the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include (i) any transfer of
Properties 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; (iii) any trade or exchange
by the Company or any Restricted Subsidiary of oil and gas Properties (other
than Properties constituting all or substantially all of the Original
Properties) for other oil and gas Properties owned or held by another Person,
provided that (x) the Fair Market Value of the Properties traded or exchanged by
the Company or such Restricted Subsidiary (including any cash or Cash
Equivalents, not to exceed 15% of such Fair Market Value, to be delivered by the
Company or such Restricted Subsidiary) is reasonably equivalent to the Fair
Market Value of the Properties (together with any cash or Cash Equivalents, not
to exceed 15% of such Fair Market Value) to be received by the Company or such
Restricted Subsidiary as determined in good faith by (i) any officer of the
Company if such fair market value is less than $5 million and (ii) the Board of
Directors of the Company as certified by a certified resolution delivered to the
Trustee if such fair market value is equal to or in excess of $5 million;
provided that if such resolution indicates that such fair market value is equal
to or in excess of $10 million such resolution shall be accompanied by a written
appraisal by a nationally recognized investment banking firm or appraisal firm,
in each case specializing or having a specialty in oil and gas Properties, and
(y) such exchange is approved by a majority of the Disinterested Directors of
the Company; or (iv) any transfer of Properties having a Fair Market Value of
less than $2,000,000.
"Attributable Indebtedness" means, with respect to any particular lease
under which any Person is at the time liable and at any date as of which the
amount thereof is to be determined, the present value of the total net amount of
rent required to be paid by such Person under the lease
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during the primary term thereof, without giving effect to any renewals at the
option of the lessee, discounted from the respective due dates thereof to such
date of determination at the rate of interest per annum implicit in the terms of
the lease. As used in the preceding sentence, the "net amount of rent" under any
lease for any such period shall mean the sum of rental and other payments
required to be paid with respect to such period by the lessee thereunder,
excluding any amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges. In the case of any lease which is terminable by the lessee upon payment
of a penalty, such net amount of rent shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"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 Agent" means The Chase Manhattan Bank, N.A. or any successor or
replacement agent under the Credit Agreement.
"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 Restricted Subsidiary, either the board
of directors of such Restricted 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 Restricted
Subsidiary, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Restricted 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.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York, New York, or the city in which the Trustee's
Corporate Trust Office is located, are authorized or obligated by law or
executive order to close.
"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.
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"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 (whether real, personal or mixed) 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 365 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 365 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 365 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 States or the District of Columbia and rated at least A-1 by
S&P or at least P-1 by Moody's; (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; and (v) overnight bank deposits and bankers' acceptances at
any commercial bank meeting the qualifications specified in clause (ii) above.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the F&R Interests, 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 is merged with or into or consolidated with another Person and,
immediately after giving effect to the merger or consolidation, (A) less than
50% of the total voting power of the outstanding Voting Stock of the surviving
or resulting Person is then "beneficially owned" (within the meaning of Rule
13d-3 under the Exchange Act) in the aggregate by (x) the stockholders of the
Company immediately prior to such merger or consolidation, or (y) if a record
date has been set to determine the stockholders of the Company entitled to vote
on such merger or consolidation, the stockholders of the Company as of such
record date and (B) any "person" or "group" (as defined in Section 13(d)(3) or
14(d)(2) of the Exchange Act), other than the F&R Interests, has become the
direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of the Voting Stock of
the surviving or resulting Person; (c) the Company, either individually or in
conjunction with one or more Restricted Subsidiaries, sells, conveys, transfers
or leases, or the Restricted Subsidiaries sell, convey, transfer or lease, 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 Wholly Owned 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 662/3% of
the directors then still in office who were either directors at the beginning of
such
-6-
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, rulings and
interpretations thereof or 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 Fixed Charge Coverage Ratio" means, for any period, the
ratio 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 that (i) 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 clause (x) of Section 10.11
hereof and 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, (ii) 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 clause (x) of
Section 10.11 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
-7-
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, (iii)
notwithstanding clauses (i) and (ii) 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 and (iv) in making such calculation, Consolidated
Interest Expense shall exclude interest attributable to Dollar-Denominated
Production Payments.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes 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, the sum of (i) 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, (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, (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, (ii) 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 or accrued by such
other Person during such period attributable to any such Indebtedness, in each
case to the extent attributable to that period, (iii) the aggregate amount of
the interest component of Capitalized Lease Obligations paid, accrued and/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 (iv) the aggregate amount of dividends paid or accrued on Redeemable Capital
Stock or Preferred Stock of the Company and its Restricted Subsidiaries, to the
extent such Redeemable Capital Stock or Preferred Stock is owned by Persons
other than Restricted Subsidiaries.
"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 its Restricted Subsidiaries in cash by such other Person during
such period (regardless of whether such cash dividends, distributions or
interest on indebtedness 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
-8-
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, (f) income resulting from transfers of assets
received by the Company or any Restricted Subsidiary from an Unrestricted
Subsidiary and (g) any writedowns of non-current assets, provided, however, that
any ceiling limitation writedowns under SEC 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 Redeemable Capital Stock or treasury stock of the Company and
its Restricted Subsidiaries, as determined in accordance with GAAP.
"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 which requires an accrual of or reserve for cash
charges for any future period).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 777 Main Street, Hartford, CT 06115, Attention: Corporate Trust
Administration, except that with respect to presentation of Securities for
payment or for registration of transfer or exchange, such term shall mean the
office or agency of the Trustee at which, at any particular time, its corporate
agency business shall be conducted.
"Credit Agreement" means the Credit Agreement dated as of December 7,
1994 among the Company and The Chase Manhattan Bank, N.A., as Agent, as such
agreement may be amended, modified, supplemented, extended, restated, replaced
(including replacement after the termination of such agreement), restructured,
increased, 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 (including
replacement after the termination of such agreement), restructured, increased,
renewed or refinanced from time to time, in each case in accordance with and as
permitted by the Indenture.
"Credit Agreement Obligations" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, from time to time owed to the
lenders or any agent under or in respect of the Credit Agreement.
"Default" means any event, act or condition the occurrence of which is,
or after notice or passage of time or both would be, an Event of Default.
-9-
"Defaulted Interest" has the meaning specified in Section 3.8 hereof.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (i) all Guarantor Senior Indebtedness of such Subsidiary
Guarantor under the Credit Agreement Obligations, (ii) all Guarantor Senior
Indebtedness of such Subsidiary Guarantor under the Senior Note Obligations and
(iii) any other Guarantor Senior Indebtedness which (a) at the time of
incurrence equals or exceeds $10,000,000 in aggregate principal amount and (b)
is specifically designated by such Subsidiary Guarantor in the instrument
evidencing such Guarantor Senior Indebtedness as "Designated Guarantor Senior
Indebtedness" for purposes of this Indenture.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Agreement Obligations (ii) all Senior Indebtedness under the
Senior Note Obligations and (iii) any other Senior Indebtedness which (a) at the
time of incurrence equals or exceeds $10,000,000 in aggregate principal amount
and (b) is specifically designated by the Company in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" for purpose of this
Indenture.
"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.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and all rules, regulations, rulings and
interpretations thereof issued by the Internal Revenue Service or the Department
of Labor thereunder.
"ERISA Affiliate" shall mean any subsidiary or trade or business
(whether or not incorporated) which is a member of a group of which the Company
is a member and which is under common control within the meaning of Section 414
of the Code (such rules and regulations shall also be deemed to apply to foreign
corporations and entities).
"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.
-10-
"Fair Market Value" means the fair market value of a Property
(including shares of Capital Stock) or Redeemable Capital Stock as determined by
a Board Resolution of the Company adopted in good faith, 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.
"F&R Interests" means, collectively, William W. Rucks, IV and James C.
Flores, together with their respective spouses, lineal descendants and
ascendents, heirs, executors or other legal representatives and any trusts
established for the benefit of the foregoing, or any other Person in which the
Persons referred to in the foregoing are at the time of determination the direct
record and beneficial owners of all of the outstanding Capital Stock.
"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.
"Guarantee" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments 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 by letters of credit. When used as a verb,
"guarantee" shall have a corresponding meaning.
"Guarantor" means any Restricted Subsidiary that incurs a Subsidiary
Guarantee.
"Guarantor Senior Indebtedness" means all Indebtedness of a Subsidiary
Guarantor (present and future) created, incurred, assumed or guaranteed by such
Subsidiary Guarantor (and all renewals, substitutions, refinancings or
replacements thereof) (including the principal of, interest on and fees,
premiums, expenses (including costs of collection), indemnities and other
amounts payable in connection with such Indebtedness) (and including, in the
case of the Credit Agreement and any guarantees related to the Senior Notes,
interest accruing after the filing of a petition by or against such Subsidiary
Guarantor under any bankruptcy law, in accordance with and at the rate,
including any default rate, specified with respect to such indebtedness, whether
or not a claim for such interest is allowed as a claim after such filing in any
proceeding under such bankruptcy law), unless the instrument governing such
Indebtedness expressly provides that such Indebtedness is not senior in right of
payment to its Subsidiary Guarantee. Notwithstanding the foregoing, Guarantor
Senior
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Indebtedness of a Subsidiary Guarantor will not include (i) Indebtedness of such
Subsidiary Guarantor evidenced by its Subsidiary Guarantee, (ii) Indebtedness of
such Subsidiary Guarantor that is expressly subordinate or junior in right of
payment to any Guarantor Senior Indebtedness of such Subsidiary Guarantor or its
Subsidiary Guarantee, (iii) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Title 11 United States Code, is
by its terms without recourse to such Subsidiary Guarantor, (iv) any repurchase,
redemption or other obligation in respect of Redeemable Capital Stock of such
Subsidiary Guarantor, (v) to the extent it might constitute Indebtedness, any
liability for federal, state, local or other taxes owed or owing by such
Subsidiary Guarantor, (vi) Indebtedness of such Subsidiary Guarantor to the
Company or any of the Company's other Subsidiaries or any other Affiliate of the
Company or any of such Affiliate's Subsidiaries, and (vii) that portion of any
Indebtedness of such Subsidiary Guarantor which at the time of issuance is
issued in violation of the Indenture (but, as to any such Indebtedness, no such
violation shall be deemed to exist for purposes of this clause (vii) if the
holder(s) of such Indebtedness or their representative or such Subsidiary
Guarantor shall have furnished to the Trustee an opinion of counsel unqualified
in all material respects of independent legal counsel, addressed to the Trustee
(which legal counsel may, as to matters of fact, rely upon a certificate of such
Subsidiary Guarantor) to the effect that the incurrence of such Indebtedness
does not violate the provisions of such Indenture); provided that the foregoing
exclusions shall not affect the priorities of any Indebtedness arising solely by
operation of law in any case or proceeding or similar event described in clause
(a), (b) or (c) of the definition of Insolvency or Liquidation Proceeding.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all liabilities of such Person 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,
but including, without limitation, all obligations, contingent or otherwise, of
such Person in connection with any letters of credit, bankers' acceptance or
other similar credit transaction and in 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, now or hereafter outstanding, 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) the Attributable Indebtedness (in excess of any
related Capitalized Lease Obligations) related to any Sale/Leaseback Transaction
of such Person, (f) 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
-12-
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), (g) 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), (h) all Redeemable Capital
Stock of such Person valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends, (i) all obligations of
such Person under or in respect of currency exchange contracts and Interest Rate
Protection Obligations and (j) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of such Person of the
types referred to in clauses (a) through (i) above. For purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
Fair Market Value of such Redeemable Capital Stock, such Fair Market Value shall
be determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock, provided, however, that if such Redeemable Capital
Stock is not at the date of determination permitted or required to be
repurchased, the "maximum fixed repurchase price" shall be the book value of
such Redeemable Capital Stock. Subject to clause (g) of the first sentence of
this definition, neither Dollar-Denominated Production Payments nor Volumetric
Production Payments shall 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 proceeding or other similar case or proceeding,
relative to such Person or to its creditors, as such, or its assets, or (b) any
liquidation, dissolution or reorganization proceeding of such Person, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any general assignment for the benefit of creditors or any other
marshalling 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 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
-13-
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 on commercially
reasonable terms in accordance with normal trade practices, (b) Interest Rate
Protection Obligations entered into in the ordinary course of business or as
required by any Permitted Indebtedness or any Indebtedness incurred in
compliance with Section 10.11 hereof, but only to the extent that the notional
principal amount of such Interest Rate Protection Obligations does not exceed
105% of the principal amount of such Indebtedness to which such Interest Rate
Protection Obligations relate and (c) bonds, notes, debentures or other
securities received as a result of Asset Sales permitted under Section 10.16
hereof.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or grant a Lien or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing) upon or with respect to any Property of any kind. A Person shall be
deemed to own subject to a Lien any Property which such Person has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices) of more than 50% during a fiscal quarter
in the estimated discounted future net cash flows from proved oil and gas
reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (a)(i) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from the
calculation of Material Change: (i) any acquisitions during the quarter of oil
and gas reserves that have been estimated by a nationally recognized firm of
independent petroleum engineers and on which a report or reports exist and (ii)
any disposition of Properties existing at the beginning of such quarter that
have been disposed of as provided in Section 10.16 hereof.
"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.
-14-
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, Section 414 of the Code or Section 3(37) of ERISA
(or any similar type of plan established or regulated under the laws of any
foreign country) to which the Company or any ERISA Affiliate is making or
accruing or has made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean any employee benefit plan within
the meaning of Section 3(3) of ERISA, other than a Multiemployer Plan, subject
to Title IV of ERISA, to which the Company or any ERISA Affiliate and an
employer other than an ERISA Affiliate or the Company contribute and which is
subject to Section 4064 of ERISA.
"Net Cash 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 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 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 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 Cash Proceeds.
"Net Working Capital" means (i) all current assets of the Company and
its Restricted Subsidiaries, minus (ii) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with GAAP.
"Non-payment Default" means, for purposes of Article XIV hereof, any
event (other than a Payment Default) the occurrence of which entitles one or
more persons to act to accelerate the maturity of any Designated Senior
Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company incurred in connection with the acquisition by the
Company 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 (b) no
default with respect to such Indebtedness would permit (after notice or passage
of time or both),
-15-
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.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Officers' Certificate" means a certificate signed by the Chairman, 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 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, if applicable), including
an employee of the Company (or any Subsidiary Guarantor, if applicable), and who
shall be reasonably acceptable to the Trustee.
"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
defeasance and/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
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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 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 any Indebtedness of the Company that is
pari passu in right of payment to the Securities.
"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.
"Payment Default" means any default in the payment when due (whether at
Stated Maturity, upon scheduled repayment, upon acceleration or otherwise) of
principal of or premium, if any, or interest on, or of unreimbursed amounts
under drawn letter of credit or fees relating to letter of credit constituting,
any Designated Senior Indebtedness.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PBGC Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA sponsored by the Company or an ERISA Affiliate (excluding
any Multiemployer Plan and any Multiple Employer Plan) and which is subject to
Title IV of ERISA or Section 412 of the Code.
"Permitted Guarantor Junior Securities" means with respect to any
Subsidiary Guarantor, so long as the effect of any exclusion employing this
definition is not to cause such Subsidiary Guarantee to be treated in any case
or proceeding or similar event described in clause (a), (b) or (c) of the
definition of Insolvency or Liquidation Proceeding as part of the same class of
claims as Guarantor Senior Indebtedness of such Subsidiary Guarantor or any
class of claims pari passu with, or senior to, Guarantor Senior Indebtedness of
such Subsidiary Guarantor, for any payment or distribution, debt or equity
securities of such Subsidiary Guarantor or any successor corporation provided
for or by a plan of reorganization or readjustment that are subordinated at
least to the same
-17-
extent that such Subsidiary Guarantee is subordinated to the payment of all
Guarantor Senior Indebtedness of such Subsidiary Guarantor when outstanding;
provided that (i) if a new corporation results from such reorganization or
readjustment, such corporation assumes any Guarantor Senior Indebtedness of such
Subsidiary Guarantor not paid in full in cash or cash equivalents in connection
with such reorganization or readjustment and (ii) the rights of the holders of
such Guarantor Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Company under one or more bank credit
or revolving credit facilities in an aggregate principal amount at any
one time outstanding not to exceed the greater of (A) $100 million and
(B) an amount equal to the sum of (x) $30 million and (y) 20% of
Adjusted Consolidated Net Tangible Assets determined as of the date of
the incurrence of such Indebtedness (such greater amount being referred
to as the "Adjusted Maximum Credit Amount") (plus interest and fees
payable under such facilities), less any amounts derived from Asset
Sales and applied to the required permanent reduction of Senior
Indebtedness (and a permanent reduction of the related commitment to
lend in the case of a revolving credit facility) under such credit
facilities as contemplated by Section 10.17(b)(i) hereof (the "Maximum
Credit Amount") (with the Maximum Credit Amount to be an aggregate
maximum amount for the Company and all Restricted Subsidiaries,
pursuant to clause (i) of the definition of "Permitted Subsidiary
Indebtedness"), and any renewals, amendments, extensions, supplements,
modifications, deferrals, refinancings or replacements (each, for
purposes of this clause, a "refinancing") thereof by the Company,
including any successive refinancings thereof by the Company, so long
as the aggregate principal amount of any such new Indebtedness,
together with the aggregate principal amount of all other Indebtedness
outstanding pursuant to this clause (i) (and clause (i) of the
definition of "Permitted Subsidiary Indebtedness") shall not at any one
time exceed the Maximum Credit Amount;
(ii) Indebtedness of the Company under the Securities;
(iii) Indebtedness of the Company outstanding on the date of
this Indenture (and not repaid or defeased with the proceeds of the
offering of the Securities and the concurrent offering of Common Stock
by the Company;
(iv) obligations of the Company pursuant to Interest Rate
Protection Obligations, but only to the extent such obligations do not
exceed 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; and
hedging arrangements that the Company enters into in the ordinary
course of business for the purpose of protecting its production against
fluctuations in oil or natural gas prices;
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(v) Indebtedness of the Company to any Restricted Subsidiaries;
(vi) in-kind obligations relating to net gas balancing positions
arising in the ordinary course of business and consistent with past
practice;
(vii) 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, including guarantees and letters of
credit supporting such bid, performance, surety or other reimbursement
obligations (in each case other than for an obligation for money
borrowed);
(viii) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing") by
the Company of any Indebtedness of the Company other than Indebtedness
incurred pursuant to clauses (iv), (vii) and (viii) of this definition,
including any successive refinancings by the Company, so long as (A)
any such new Indebtedness shall be in a principal amount that does not
exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) so refinanced plus the amount
of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness refinanced or the amount of
any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus the amount of expenses of the Company
incurred in connection with such refinancing, (B) in the case of any
refinancing of Subordinated Indebtedness, such new Indebtedness is made
subordinate to the Securities at least to the same extent as the
Indebtedness being refinanced and (C) such new Indebtedness has an
Average Life equal to or longer than the Average Life of the
Indebtedness being refinanced and a final Stated Maturity equal to or
later than the final Stated Maturity of the Indebtedness being
refinanced;
(ix) Non-Recourse Indebtedness; and
(x) other Indebtedness of the Company and the Restricted
Subsidiaries that are Subsidiary Guarantors in an aggregate principal
amount not in excess of $25,000,000 at any one time outstanding.
"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 of the Company; or (B) such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets 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
-19-
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; or
(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 against fluctuations in oil or natural gas prices.
"Permitted Junior Securities" means, so long as the effect of any
exclusion employing this definition is not to cause the Securities to be treated
in any case or proceeding or similar event described in clause (a), (b) or (c)
of the definition of Insolvency or Liquidation Proceeding as part of the same
class of claims as Senior Indebtedness or any class of claims pari passu with,
or senior to, Senior Indebtedness, for any payment or distribution, debt or
equity securities of the Company or any successor corporation provided for or by
a plan of reorganization or readjustment that are subordinated at least to the
same extent that the Securities are subordinated to the payment of all Senior
Indebtedness when outstanding; provided that (i) if a new corporation results
from such reorganization or readjustment, such corporation assumes any Senior
Indebtedness not paid in full in cash or cash equivalents in connection with
such reorganization or readjustment and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date the Securities are
first issued;
(b) Liens securing the Securities;
(c) Liens in favor of the Company or a Restricted
Subsidiary that is a Subsidiary Guarantor;
(d) Liens securing Senior Indebtedness or Guarantor
Senior Indebtedness;
(e) Liens for taxes, assessments and governmental charges or
claims either (i) not delinquent or (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;
-20-
(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,
leases, 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 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) 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 the Subsidiaries;
(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
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 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;
-21-
(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 out
of 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 and 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 Property 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; and
(w) Liens securing Non-Recourse Indebtedness; provided,
however, that the related Non-Recourse Indebtedness shall not be
secured by any Property of the Company or any Restricted Subsidiary
other than the Property acquired by the Company with the proceeds of
such Non-Recourse Indebtedness;
Notwithstanding anything in clauses (a) through (w) of this definition, the term
"Permitted Liens" does 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.
-22-
"Permitted Subsidiary Indebtedness" means any of the following:
(i) Indebtedness of any Restricted Subsidiary under one or
more bank credit or revolving credit facilities (and "refinancings"
thereof) in an amount at any one time outstanding not to exceed the
Maximum Credit Amount (in the aggregate for all Restricted
Subsidiaries and the Company, pursuant to clause (i) of the definition
of "Permitted Indebtedness");
(ii) Indebtedness of any Restricted Subsidiary outstanding
on the date of this Indenture;
(iii) obligations of any Restricted Subsidiary pursuant to
Interest Rate Protection Obligations, but only to the extent such
obligations do not exceed the aggregate principal amount of the
Indebtedness covered by such Interest Rate Protection Obligations; and
hedging arrangements that any Restricted Subsidiary enters into in the
ordinary course of business for the purpose of protecting its
production against fluctuations in oil or natural gas prices;
(iv) the Subsidiary Guarantees of the Securities and Senior
Notes (and any assumptions of the obligations guaranteed thereby);
(v) Indebtedness of any Restricted Subsidiary relating to
guarantees by such Restricted Subsidiary of the Indebtedness of the
Company under any bank credit facility that constitutes Permitted
Indebtedness pursuant to clause (i) of the definition of "Permitted
Indebtedness;"
(vi) Indebtedness of any Restricted Subsidiary to any other
Restricted Subsidiary or to the Company;
(vii) Indebtedness relating to guarantees of any Restricted
Subsidiary permitted to be incurred pursuant to Section 10.12 hereof;
and
(viii) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing")
by any Restricted Subsidiary of any Indebtedness of such Restricted
Subsidiary, including any successive refinancings by such Restricted
Subsidiary, so long as (x) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms
of the Indebtedness refinanced or the amount of any premium reasonably
determined by such Restricted Subsidiary as necessary to accomplish
such refinancing, plus the amount of expenses of such Subsidiary
incurred in connection with such refinancing and
-23-
(y) such new Indebtedness has an Average Life equal to or
longer than the Average Life of the Indebtedness being refinanced and
a final Stated Maturity equal to or later than the final Stated
Maturity of the Indebtedness being refinanced.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor 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 or 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.
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of 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 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.
"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.
-24-
"Regular Record Date" for the interest payable on any Interest Payment
Date means the _________________ or ____________________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Reportable Event" shall mean any event described in Section 4043
(excluding subsections (b)(7) and (b)(9)) of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the provision for
thirty-day notice to the PBGC under such regulations).
"Responsible Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Administration Department of the Trustee, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"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 Corporation and its successors.
"Sale/Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Properties are sold or
transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5 hereof.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company (including, in the case of the
Credit Agreement and the Senior Notes, interest accruing after the filing of a
petition by or against the Company under any bankruptcy law, in accordance with
and at the rate, including any default rate, specified with respect to such
indebtedness, whether or not a claim for such interest is allowed as a claim
after such filing in any proceeding under such bankruptcy law), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes. Notwithstanding the foregoing, "Senior Indebtedness" shall
not include (a) Indebtedness evidenced by the Notes, (b) Indebtedness that is
expressly subordinate or junior in right of payment to any Senior Indebtedness
of the Company, (c) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11 United States Code, is by its terms
without recourse
-25-
to the Company, (d) any repurchase, redemption or other obligation in respect of
Redeemable Capital Stock of the Company, (e) to the extent it might constitute
Indebtedness, any liability for federal, state, local or other taxes owed or
owing by the Company, (f) Indebtedness of the Company to a Subsidiary of the
Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, and (g) that portion of any Indebtedness of the Company which at
the time of issuance is issued in violation of the Indenture (but, as to any
such Indebtedness, no such violation shall be deemed to exist for purposes of
this clause (g) if the holder(s) of such Indebtedness or their representative or
the Company shall have furnished to the Trustee an opinion of counsel
unqualified in all material respects of independent legal counsel, addressed to
the Trustee (which legal counsel may, as to matters of fact, rely upon a
certificate of the Company) to the effect that the incurrence of such
Indebtedness does not violate the provisions of such Indenture); provided that
the foregoing exclusions shall not affect the priorities of any Indebtedness
arising solely by operation of law in any case or proceeding or similar event
described in clause (a), (b) or (c) of the definition of Insolvency or
Liquidation Proceeding.
"Senior Notes" means the 13 1/2% Senior Notes due 2004 of the Company
issued pursuant to the Indenture, dated as of December 1, 1994, between the
Company, as issuer, FRI Louisiana, as subsidiary guarantor, and Shawmut Bank
Connecticut, National Association (now known as Fleet National Bank), as
trustee.
"Senior Note Obligations" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, fees, expenses and indemnities, from
time to time owed to the holders or the trustee in respect of the Senior Notes.
"Senior Representative" means the Bank Agent or any other
representatives designated in writing to the Trustee of the holders of any class
or issue of Designated Senior Indebtedness; provided that, in the absence of a
representative of the type described above, any holder or holders of a majority
of the principal amount outstanding of any class or issue of Designated Senior
Indebtedness may collectively act as Senior Representative for such class or
issue, subject to the provisions of any agreements relating to such Designated
Senior Indebtedness.
"Senior Subordinated Note Obligations" means any principal of, premium,
if any, and interest on, and any other amounts (including, without limitation,
any payment obligations with respect to the Securities as a result of any Asset
Sale, Change of Control or redemption) owing in respect of, the Securities
payable pursuant to the terms of the Securities or the Indenture or upon
acceleration of the Securities.
"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 Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such
-26-
Security or such installment of interest is due and payable, and, when used with
respect to any otherIndebtedness or any installment of interest thereon, means
the date specified in the instrument evidencing or governing such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company which is
expressly subordinated in right of payment to the Securities.
"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, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Person performing
similar functions).
"Subsidiary Guarantee" has the meaning specified in Section 13.1
hereof.
"Subsidiary Guarantor" means (i) Flores & Rucks, Inc., a Louisiana
corporation, (ii) each of the Company's Restricted Subsidiaries that becomes a
guarantor of the Securities in compliance with the provisions of Section 10.12
or Section 13.1 hereof and (iii) each of the Company's Subsidiaries executing a
supplemental indenture in which such Subsidiary agrees to be bound by the terms
of this Indenture and to guarantee on an unsubordinated basis the payment of the
Securities pursuant to the provisions of Article XIII 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) neither the Company nor any Restricted Subsidiary has
made an Investment in such Subsidiary unless such Investment was made pursuant
to, and in accordance with, Section
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10.10 hereof (other than Investments of the type described in clause (iv) of the
definition of Permitted Investments); 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 (other than any Permitted Lien or any Lien
the creation or imposition of which shall have been in compliance with Section
10.14 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, (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 10.11(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 10.14 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
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).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary to
the extent all of the Capital Stock or other ownership interests in such
Restricted Subsidiary, other than any directors qualifying shares mandated by
applicable law, is owned directly or indirectly by the Company.
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Section 1.2 Other Definitions.
Defined
Term in Section
---- ----------
"Agent Members................................................. 3.6
"Change of Control Notice"..................................... 10.15(c)
"Change of Control Offer"...................................... 10.15(a)
"Change of Control Purchase Date".............................. 10.15(c)
"Change of Control Purchase Price"............................. 10.15(a)
"Defaulted Interest"........................................... 3.8
"Global Security".............................................. 2.1
"Funding Guarantor"............................................ 13.5
"Excess Proceeds".............................................. 10.16(b)
"Net Proceeds Deficiency"...................................... 10.16(c)
"Net Proceeds Offer"........................................... 10.16(c)
"Net Proceeds Payment Date".................................... 10.16(c)
"Offered Price"................................................ 10.16(c)
"Pari Passu Indebtedness Amount"............................... 10.16(c)
"Pari Passu Offer"............................................. 10.16(c)
"Payment Amount"............................................... 10.16(b)
"Payment Blockage Notice"...................................... 14.3(b)
"Payment Blockage Period" ..................................... 14.3(b)
"Physical Securities".......................................... 2.1
"Permitted Payments"........................................... 10.10(b)
"Purchase Notice".............................................. 10.16(c)
"Restricted Payment"........................................... 10.10(a)
"Subsidiary Guarantor Non-payment Default"..................... 13.9(b)
"Subsidiary Guarantor Payment Default"......................... 13.9(a)
"Subsidiary Guarantor Payment Notice".......................... 13.9(b)
"Surviving Entity"............................................. 8.1(a)
"Trigger Date"................................................. 10.16(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,
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"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;
(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;
(d) unless the context otherwise requires, the word "or" is not
exclusive;
(e) provisions apply to successive events and transactions; and
(f) 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.
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Securities (including the notations thereon relating to the
Subsidiary Guarantees and the Trustees certificate of authentication) bought and
sold shall be issued initially in the form of one or more permanent global
Securities substantially in the form set forth in Sections 2.2 through 2.5
hereof (the "Global Security") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Subject to the limitation set forth in Section 3.1, the
principal amount 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 Trustees certificate of authentication) offered
and sold other than as described in the preceding paragraph shall be issued in
the form of permanent certificated Securities in registered form in
substantially the for 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 forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or notations of Subsidiary Guarantees, as 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 Sections 10.15 and 10.16 hereof.
Section 2.2 Form of Face of Security.
FLORES & RUCKS, INC.
9 3/4% Senior Subordinated Note due 2006
No. _____ $__________
CUSIP No. 34039C AB 3
Flores & Rucks, 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 October 1, 2006, at the office or agency of the
Company referred to below, and to pay interest thereon, commencing on April 1,
1997 and continuing semiannually thereafter, on April 1 and October 1 in each
year, from September 26, 1996, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 9.75% per
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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 at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (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, or at such other office or
agency of the Company as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided however, that payment
of interest may be made at the option of the Company (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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
FLORES & RUCKS, INC.
By:
--------------------------------
Chairman of the Board
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 9 3/4%
Senior Notes due 2006 (herein called the "Securities"), limited (except as
otherwise provided in the Indenture referred to below) in aggregate principal
amount to $160,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of September 26, 1996 between the Company, the
Subsidiary Guarantors and Fleet National Bank, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, 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.
The Indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) and this Security is issued subject to such provisions. Each
Holder of this Security, by accepting the same, (i) agrees to and shall be bound
by such provisions, (ii) authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (iii) appoints the Trustee as his
attorney-in-fact for such purpose.
The Securities are subject to redemption, at the option of the
Company, in whole or in part, at any time on or after October 1, 2001, 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 October 1 of the years indicated below:
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Redemption
Year Price
---- ----------
2001............................................... 104.875%
2002............................................... 103.250%
2003............................................... 101.625%
2004 and thereafter ............................... 100%
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 Regular 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.
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 the 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.
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 70 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 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 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 30 days after
notice to comply with any other covenants in the Indenture or the Securities;
(v) certain payment defaults under, the acceleration prior to the maturity of,
and the exercise of certain enforcement rights with respect to, certain
Indebtedness of the
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Company or any Subsidiary Guarantor 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 or otherwise to be enforceable (except as permitted by the
Indenture); (vii) certain events giving rise to ERISA liability; (viii) certain
final judgments against any Subsidiary Guarantor or other Restricted Subsidiary
in an aggregate amount of $5,000,000 or more which remain unsatisfied and either
become subject to commencement or enforcement proceedings or remain unstayed for
a period of 60 days; and (ix) certain events of bankruptcy, insolvency or
reorganization of the Company, any Subsidiary Guarantor or any other 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,
acceleration or the exercise of certain enforcement rights with respect to
certain Indebtedness, any 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
or if in certain circumstances the proceedings or enforcement action with
respect to the Indebtedness that is the subject of such Event of Default is
terminated or rescinded. No Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default
and written request by Holders of at least 25% in 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 sue for
enforcement of any overdue payment on a Security by the Holder thereof. Subject
to certain limitations, Holders of a majority in 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 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 quarterly reports with the Trustee as to the absence
or existence of defaults.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of the Company on this Security and (ii) 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
-35-
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 provide for uncertificated Securities in addition to
or in place of certificated Securities and to make certain other specified
changes and other changes that do not adversely affect the rights of any Holder.
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 in
The City of New York, 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 of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made 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, incorporator, or stockholder of the
Company or any Subsidiary Guarantor, as such, shall not have any personal
liability under this Security or the Indenture by reason of his or its status as
such director, officer, incorporator or stockholder. 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,
-36-
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 8440 Jefferson Highway., Suite
420, Baton Rouge, Louisiana 70809.
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.
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.
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 GUARANTEE
Subject to the limitations set forth in the Indenture, the
Subsidiary Guarantors (as defined in the Indenture referred to in the Security
upon which this notation is endorsed and each hereinafter referred to as a
"Subsidiary Guarantor," which term includes any successor or additional
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.
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture unless otherwise indicated.
The obligations of each Subsidiary Guarantor are limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities 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
-37-
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 the Subsidiary Guarantors to the Holders or
the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly
subordinate to all Guarantor Senior Indebtedness to the extent set forth in
Article XIII of the Indenture and reference is made to such Indenture for the
precise terms of such subordination.
No stockholder, officer, director or incorporator, as such,
past, present or future, of the Subsidiary Guarantors shall have any personal
liability under the Subsidiary Guarantee by reason of his or its status as such
stockholder, officer, director or incorporator.
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 Guarantee is endorsed shall have the meanings assigned to
them in such Indenture.
The Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor and its successors and assigns 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, 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 Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
FLORES & RUCKS, INC.
Attest: By:
---------------------- -----------------------
Secretary 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 9 3/4% Senior Subordinated Notes due 2006
referred to in the within-mentioned Indenture.
Authenticated:
Dated: ------------------ ------------------------------
Fleet National Bank
Trustee
By:
---------------------------
Authorized Officer
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 is
limited to $160,000,000 except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.4, 3.5, 3.6, 3.7, 9.6, 10.15, 10.16 or 11.8 hereof.
The Securities shall be known and designated as the "9 3/4%
Senior Subordinated Notes Due 2006" of the Company. Their Stated Maturity shall
be October 1, 2006, and they shall bear interest at the rate of 9.75% per annum
from September 26, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semiannually on April 1 and
October 1 in each year, commencing April 1, 1997, 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, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid (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.
-39-
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 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.
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 and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company and having the notation 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 notation of Subsidiary Guarantees thereon as provided in
this Indenture.
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
officer, 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 convey, transfer, lease or otherwise dispose of its Properties
substantially as an entirety 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 conveyance,
transfer, lease or other disposition
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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 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 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 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, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.2 hereof being herein sometimes
referred to as 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 shall authenticate and deliver, in
the name of the designated transferee or transferees, one
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or more new Securities of any authorized denomination or denominations of a like
aggregate principal amount, each such Security having notation of the Subsidiary
Guarantees thereon.
Furthermore, any Holder of the Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interest
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book entry.
At the option of the 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 such
office or agency. 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.
No service charge shall be made 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
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 Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Section 3.6 Book-Entry Provisions for Global Security.
(a) The Global Security initially shall be registered in the
name of the Depository for such Global Security or the nominee of such
Depository and be delivered to the Trustee as custodian for such Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the
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Depository, or the Trustee as its custodian, or under the Global Security, and
the Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or 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.
(b) Transfers of the 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
the Global Security may be transferred in accordance with the rules and
procedures of the Depository. Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Security if, and only if, either (1) the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the Global Security and a
successor Depository is not appointed by the Company within 90 days of such
notice, (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 a Global
Security.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
subsection (b) of this Section, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security
in an amount equal to the principal amount of the beneficial interest in the
Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(d) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to subsection (b) of 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 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.
(e) The registered holder of the 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 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 notations 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
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destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, having the notations 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 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, 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
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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).
(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 destroyed and a certificate of their
destruction delivered to the Company unless by a Company Order the Company shall
direct that cancelled Securities be returned to it.
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 mutilated, 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 has
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 (2)(i), (2)(ii) or (2)(iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose 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; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company.
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each satisfactory in form
to the Trustee, 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
subclause (ii) of clause (1) of 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 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, whether such payment is due at maturity, upon
redemption, upon repurchase 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 in Control Offer
in accordance with the provisions of Section 10.15 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
10.16; or
(d) the Company or any Subsidiary Guarantor in this Indenture
shall fail to perform or observe any other term, covenant or agreement contained
in the Securities, any Subsidiary Guarantee or this Indenture (other than a
default specified in (a), (b) or (c) above) for a period of 30 days after
written notice of such failure requiring the Company 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
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(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 causing 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) the commencement of proceedings, or the taking of any
enforcement action (including by way of set-off), by any holder of at least
$5,000,000 in aggregate principal amount of Indebtedness of the Company or any
Subsidiary Guarantor or any other Restricted Subsidiary, after a default under
such Indebtedness, to retain in satisfaction of such Indebtedness or to collect
or seize, dispose of or apply in satisfaction of such Indebtedness, Property or
assets of the Company or any Subsidiary Guarantor or any other Restricted
Subsidiary having a Fair Market Value in excess of $5,000,000 individually or in
the aggregate; or
(g) 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,
enforceable in accordance with its terms (except pursuant to the release of any
such Subsidiary Guarantee in accordance with this Indenture); or
(h) if (i) any material "accumulated funding deficiency" (as
defined in Section 302 of ERISA or Section 412 of the Code), shall exist with
respect to any PBGC Plan or Multiple Employer Plan (unless a waiver or extension
is obtained under Section 412(d) or (e) of the Code and Sections 303 and 304 of
ERISA), if such accumulated funding deficiency would give rise to a material
liability of the Company, (ii) a Reportable Event shall occur with respect to
any PBGC Plan or Multiple Employer Plan, which Reportable Event is likely to
result in the termination of such PBGC Plan or Multiple Employer Plan for
purposes of Title IV of ERISA and to give rise to a material liability of the
Company, (iii) proceedings to have a trustee appointed, or proceedings to have a
trustee appointed shall commence, or a trustee shall be appointed to terminate
or administer a PBGC Plan or Multiple Employer Plan which proceeding is likely
to result in the termination of such PBGC Plan or Multiple Employer Plan and to
give rise to a material liability of the Company with respect to such
termination, (iv) a notice of intent to terminate a PBGC Plan or Multiple
Employer Plan in a distress termination under Section 4041(c) of ERISA is
furnished to participants, (v) any Multiemployer Plan is in reorganization or is
insolvent and the circumstances are such that such reorganization or insolvency
will likely result in a material liability to the Company, (vi) there is a
complete or partial withdrawal from a Multiemployer Plan under circumstances
that would likely subject the Company to material liability, or (vii) any event
or condition described in (i) through (vi) above (determined without regard to
whether the event or condition taken alone would or could result in a material
liability) shall occur or exist with respect to a PBGC Plan, Multiple Employer
Plan or Multiemployer Plan which in combination with one or more of any events
described in (i) through (vi) above (determined without regard to whether the
event or condition taken alone would or could result in a material liability)
that has occurred or exists, would likely subject the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary to any material tax, penalty or
other liability (for purposes of this paragraph (i) the term "material" and
"material liability" shall mean any tax, penalty or liability in excess of
$5,000,000); or
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(i) 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 (i) 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 (ii) 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
(j) the entry of a decree or order by a court having
jurisdiction in the premises (i) 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 (ii)
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 a
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 their consolidated assets, or ordering the winding up or
liquidation of their 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
(k) 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 applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by the Company 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 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 any of the Company or any Subsidiary Guarantor or any other
Restricted Subsidiary or of any substantial part of their 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(j) or (k) 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 principal amount of the Outstanding Securities
shall, by a notice in writing to the Company (and to the Trustee if given by the
Holders), declare all unpaid principal of, premium, if any, and accrued interest
on all the Securities to be due and payable immediately, upon which declaration
all amounts
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payable in respect of the Securities shall be immediately due and payable. If an
Event of Default specified in Section 5.1(j) or (k) hereof occurs and is
continuing, the amounts described above shall ipso facto become and be
immediately due and payable without any declaration, notice or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in 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 has become due otherwise than by
such declaration of acceleration including any 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 judgement 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, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in (i) Section 5.1(e) hereof shall have occurred and be continuing,
such declaration of acceleration 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
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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), or (ii) Section 5.1(f) hereof shall have occurred and be
continuing, such declaration and any consequential acceleration shall be
automatically rescinded if the proceedings or enforcement action with respect to
the Indebtedness that is the subject of such Event of Default are terminated or
rescinded, or such Indebtedness has been repaid and only so long as the Holder
of such Indebtedness shall not have applied any Property referenced in such
Section 5.1(f) hereof in satisfaction of such Indebtedness, and, in the case of
both (i) and (ii) above, 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 such
declaration of acceleration in respect of the Securities, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period, and so long as such recision of the declaration of
acceleration of the Securities does not conflict with any judgement 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
(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 a Net Proceeds Offer, as applicable, 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 moneys 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
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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, the Subsidiary Guarantors or any other
obligor upon the Securities or the Property of the Company, the Subsidiary
Guarantors or of such other obligor or their creditors, 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
(b) to collect and receive any moneys or other Property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 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
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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: 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: The balance, if any, to the Company.
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 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 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
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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 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 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 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.
Upon any such waiver, such Default or Event of Default shall
cease to exist for every purpose under this Indenture, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
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, 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) and/or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, 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 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; and provided,
further, that in the case of any Default of the character specified in Section
5.1(e) hereof, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
Section 6.2 Certain Rights of Trustee. Subject to the
provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, 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;
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(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;
(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 see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(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; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
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
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sufficiency of this Indenture or of 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 a Statement of Eligibility and Qualification on Form
T-1 supplied to the Company are true and accurate, subject to the qualifications
set forth herein. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.4 May Hold Securities. The Trustee, any Paying
Agent, any Security Register or any other agent of the Company, any Subsidiary
Guarantor 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,
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.
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 negligence or
bad faith); and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without 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
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.
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When the Trustee incurs expenses or renders services after the occurrence of an
Event of Default specified in paragraphs (j) or (k) 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.
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.
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 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
(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
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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 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 14.5 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 property
and money 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.
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 may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such
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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, 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.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders.
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 either of them, shall be held accountable by reason of
the disclosure of any such 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, 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, 1995, 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.
Section 7.3 Reports by Company. The Company (and the
Subsidiary Guarantors, if applicable) shall:
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(a) file with the Trustee, within 15 days after the Company
(and the Subsidiary Guarantors, if applicable) 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 (and the Subsidiary Guarantors, if applicable) may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Company (and the Subsidiary Guarantors, if applicable) is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(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 (and the Subsidiary Guarantors, if applicable) 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), within 30 days after the filing thereof
with Trustee, such summaries of any information, documents and reports required
to be filed by the Company (and the Subsidiary Guarantors, if applicable)
pursuant to paragraphs (a) and (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 or lease or otherwise dispose of all or substantially
all its Properties 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 or transactions 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 or such Restricted Subsidiary is merged
or to which the Properties of the Company or such Restricted Subsidiary, as the
case may be, are sold, assigned, conveyed, transferred, leased or otherwise
disposed of (any such surviving Person or transferee Person being 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
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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 for the due and punctual payment
of the principal of (and premium, if any, on) and interest on all the Securities
and the performance and observance of every covenant of this Indenture on the
part of the Company to be performed or observed, and 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
(calculated in each case, in accordance with GAAP);
(d) except in the case of the consolidation or merger of any
Restricted Subsidiary with or into the Company or any Wholly Owned Restricted
Subsidiary, immediately before and after giving effect to such transaction or
transactions on a pro forma basis (on the assumption 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 10.11(a) hereof;
(e) each Subsidiary Guarantor unless it is the party to the
transactions described above, shall have by supplemental indenture confirmed
that its Subsidiary Guarantee shall apply to such Person'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
10.14 hereof; and
(g) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in form and substance
reasonably acceptable to the Trustee, each 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, complies with this Indenture and that all conditions precedent herein
relating to such transaction or transactions have been satisfied.
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Section 8.2 Successor Substituted. Upon any consolidation of
the Company with or merger of the Company with or 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 to any Person in accordance
with Section 8.1 hereof, the successor Person formed by such consolidation or
into which the Company is merged or to which such sale, assignment, conveyance,
transfer or other disposition (other than by lease) is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and 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 merger, or the sale, assignment,
lease, conveyance, transfer or other disposition of all or substantially all of
the Properties of the Company 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, the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee, 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 add any additional Events of Default; 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 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
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(f) to secure the Securities pursuant to the requirements of
Section 10.14 hereof or otherwise; or
(g) to add any Person as a Subsidiary Guarantor as provided in
Section 13.1 hereof or as contemplated by the definition of "Permitted
Subsidiary Indebtedness" to evidence the succession of another Person to any
Guarantor 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; or
(h) to release a Subsidiary Guarantor from its Guarantee
pursuant to Section 10.12 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 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, the
Subsidiary Guarantors, when authorized by a Board Resolution, and the Trustee
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 payable upon the redemption
thereof, or change the coin or currency in which any Security or any premium or
the interest thereon 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 and their consequences 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;
(d) modify Section 10.12 hereof or any provisions of this
Indenture relating to the Subsidiary Guarantees in a manner adverse to the
Holders thereof; 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
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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 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.
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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 in the Borough of Manhattan, The City of New York, 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 office of Fleet
Natinoal Bank, located at c/o First Chicago Trust Company, 14 Wall Street, 8th
Floor, Window 2, New York, New York 10005, Attention: Corporate Trust Operations
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 (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes. The Company 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 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 sums 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.
Whenever the Company shall have one or more Paying Agents for
the Securities, it will, on or before 12:00 noon on each due date of the
principal of (and premium, if any, on), or interest on, any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of such
action or any failure so to act.
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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.
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.
Section 10.4 Corporate Existence. Except as expressly
permitted by Article VIII hereof, Section 10.16 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, right or franchise,
if the Board of Directors 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.
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Section 10.5 Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all 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.
Section 10.6 Maintenance of Properties. 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 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 from discontinuing the maintenance of any of such Properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders. Notwithstanding the
foregoing, nothing contained in this Section 10.6 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.
Section 10.7 Insurance. The Company shall at all times keep
all of its and its Restricted Subsidiaries' 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 is usually so
insured by corporations similarly situated and owning like properties.
The Company may adopt such other plan or method of protection,
in lieu of or supplemental to insurance with insurers, whether by the
establishment of 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 owning like
properties, as may be determined by the Board of Directors.
Section 10.8 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 90 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 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
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have
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occurred, 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 and the Subsidiary Guarantors shall, so long
as any of the Securities are outstanding, deliver to the Trustee forthwith upon
any Officer becoming aware of any Default or Event of Default or default in the
performance of any covenant, agreement or condition contained in this Indenture,
an Officers' Certificate specifying such Default or Event of Default and what
action the Company or any Subsidiary Guarantor proposes to take with respect
thereto within 10 days of its occurrence.
Section 10.9 Provision of Financial Information. The Company
and the Subsidiary Guarantors shall file with the Trustee (with exhibits) and
deliver to each Holder (without exhibits), within 15 days after it files them
with the Commission, copies of the annual and quarterly reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
each of the Company and the Subsidiary Guarantors is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall nonetheless file with the Commission and the Trustee copies of
such annual reports and such information, documents and other reports as it
would file if it were subject to the requirements of Section 13 or 15(d) of the
Exchange Act. 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 the Company's cost copies of such reports and documents to any
holder of Securities promptly upon written request. The Company and each
Subsidiary Guarantor also shall comply with the other provisions of TIA Section
314(a).
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 the Company's Capital Stock (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 Wholly Owned Restricted Subsidiary of the Company) 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;
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(iv) declare or pay any dividend on, or make any distribution
to the holders of, any shares of Capital Stock of any Restricted
Subsidiary of the Company (other than to the Company or any of its
Wholly Owned Restricted Subsidiaries) or purchase, redeem or otherwise
acquire or retire for value any Capital Stock of any Restricted
Subsidiary or any options, warrants or other rights to acquire any such
Capital Stock (other than with respect to any such Capital Stock held
by the Company or any Wholly Owned Restricted Subsidiary of the
Company);
(v) make any Investment (other than any Permitted Investment);
(vi) in connection with the acquisition of any Property by the
Company or its Restricted Subsidiaries after the date of this
Indenture, which Property would secure or be subject to any Production
Payment obligations of the Company or its Restricted Subsidiaries, make
any investment (of cash, Property or other assets) in such Property so
acquired in addition to the amount of Indebtedness (including
Production Payment obligations) incurred by the Company or its
Restricted Subsidiaries in connection with such acquisition; or
(vii) incur, create, assume or suffer to exist any guarantee
of Indebtedness of any Affiliate (other than (a) guarantees of
Indebtedness of any Restricted Subsidiary by the Company or (b)
guarantees of Indebtedness of the Company by any Restricted Subsidiary,
in each case in accordance with the terms of this Indenture);
(such payments or other actions described in (but not excluded from) clauses (i)
through (vii) are 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 10.11 hereof and (C) the 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 aggregate cumulative Consolidated Net Income of
the Company accrued on a cumulative basis during the period beginning
on January 1, 1995 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 aggregate cumulative 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 as capital contributions to the Company
(other than from any Restricted Subsidiary), plus
(3) 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 option, warrants or rights to purchase such
shares of Qualified Capital Stock of the Company, plus
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(4) 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
(5) 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 debt securities or shares of
Redeemable Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Company to the extent such debt
securities were originally sold for cash, together with the aggregate
cash received by the Company at the time of such conversion or
exchange, plus
(6) To the extent not otherwise included in the Company's
Consolidated Net Income, the net reduction in Investments in
Unrestricted Subsidiaries resulting from the payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
transfers of Properties, 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
(7) $15,000,000.
(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 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);
(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 purchase, redemption, repayment, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness (other
than Redeemable Capital Stock) 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;
and
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(iv) the purchase, redemption, repayment, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness (other
than Redeemable Capital Stock) in exchange for, or out of the aggregate
net cash proceeds of a substantially concurrent incurrence (other than
to a Restricted Subsidiary) of, Subordinated Indebtedness of the
Company so long as (A) the principal amount of such new Indebtedness
does not exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) of the Subordinated Indebtedness being so purchased,
redeemed, repaid, defeased, acquired or retired, plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Subordinated Indebtedness refinanced or
the amount of any premium reasonably determined by the Company as
necessary to accomplish such refinancing, plus the amount of expenses
of the Company incurred in connection with such refinancing, (B) such
new Subordinated Indebtedness is subordinated to the Securities at
least to the same extent as such Subordinated Indebtedness so
purchased, redeemed, repaid, defeased, acquired or retired, (C) such
new Subordinated Indebtedness has an Average Life to Stated Maturity
that is longer than the Average Life to Stated Maturity of the
Securities and such new Subordinated Indebtedness has a Stated Maturity
for its final scheduled principal payment that is at least 91 days
later than the Stated Maturity for the final scheduled principal
payment of the Securities.
The actions described in clauses (i), (ii) and (iii) of this paragraph (b) shall
be Restricted Payments that shall be permitted to be taken 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)), and
the actions described in clause (iv) of this paragraph (b) shall be Restricted
Payments that shall be permitted to be taken in accordance with this paragraph
and shall not reduce the amount that would otherwise be available for Restricted
Payments under clause (C) of paragraph (a).
(c) In computing Consolidated Net Income of the Company 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.
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Section 10.11 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, issue, assume, guarantee or in any manner become
directly or indirectly liable for the payment of (collectively "incur") any
Indebtedness (including any Acquired Indebtedness), other than Permitted
Indebtedness and Permitted Subsidiary Indebtedness, as the case may be;
provided, however, that the Company and its Restricted Subsidiaries that are
Subsidiary Guarantors may incur Indebtedness if (x) the Company's Consolidated
Fixed Charge Coverage Ratio for the four full fiscal quarters immediately
preceding the incurrence of such Indebtedness, taken as one period (at the time
of such incurrence and after giving pro forma effect to: (i) the incurrence of
such Indebtedness and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was incurred and the application of such proceeds occurred at the beginning of
such four-quarter period; (ii) the incurrence, repayment or retirement of any
other Indebtedness (including Permitted Indebtedness) by the Company or its
Restricted Subsidiaries since the first day of such four-quarter period
(including any other Indebtedness to be incurred concurrent with the incurrence
of such Indebtedness) as if such Indebtedness was incurred, repaid or retired at
the beginning of such four-quarter period; and (iii) notwithstanding clause (d)
of the definition of Consolidated Net Income, the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any Person acquired or disposed of by the Company or its
Restricted Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period), would have been equal to at least 2.5 to
1.0.
Section 10.12 Limitation on Guarantees of Indebtedness by
Subsidiaries.
(a) The Company shall not permit any Restricted Subsidiary
that is not a Subsidiary Guarantor to guarantee the payment of any Indebtedness
of the Company unless (i) (A) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to this Indenture providing for a
Subsidiary Guarantee of the Securities by such Restricted Subsidiary which
Subsidiary Guarantee shall be subordinated to Guarantor Senior Indebtedness (but
no other indebtedness) to the same extent that the Notes are subordinated to
Senior Indebtedness and (B) with respect to any guarantee of Subordinated
Indebtedness by a Restricted Subsidiary, any such guarantee shall be
subordinated to such Restricted Subsidiary's Subsidiary Guarantee at least to
the same extent as such Subordinated Indebtedness is subordinated to the
Securities; (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee until such time as the obligations
guaranteed thereby are paid in full; and (iii) such Restricted Subsidiary shall
deliver to the Trustee an Opinion of Counsel to the effect that such Subsidiary
Guarantee has been duly executed and authorized and constitutes a valid, binding
and enforceable obligation of such Restricted Subsidiary, except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
(including, without limitation, all laws relating to fraudulent transfers) and
except insofar as enforcement thereof is subject to general principles of
equity; provided that this paragraph (a) shall not be applicable to any
guarantee of any Restricted Subsidiary that (x) existed at the time such Person
became a Restricted Subsidiary of the Company and (y) was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary of the Company.
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(b) Notwithstanding the foregoing and the other provisions of
this Indenture, any Subsidiary Guarantee incurred by a Restricted Subsidiary
pursuant to this Section 10.12 shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer, to any Person that is not an Affiliate of the Company, of
all of the Company's Capital Stock in, or all or substantially all the Property
of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Indenture), (ii) the merger of such Restricted Subsidiary
into the Company or any other Restricted Subsidiary (provided the surviving
Restricted Subsidiary assumes the Subsidiary Guarantee) or the liquidation and
dissolution of such Restricted Subsidiary (in each case to the extent not
prohibited by this Indenture), or (iii) the release or discharge of the
guarantee which resulted in the creation of such Subsidiary Guarantee of the
Securities, except a discharge or release by or as a result of payment under
such guarantee.
Section 10.13 Limitation on Issuances and Sale of Capital
Stock by Restricted Subsidiaries. The Company (a) shall not permit any
Restricted Subsidiary to issue any Preferred Stock (other than to the Company
and/or one or more Wholly Owned Restricted Subsidiaries) and (b) shall not
permit any Person (other than the Company and/or one or more Wholly Owned
Restricted Subsidiaries) to own any Capital Stock of any Restricted Subsidiary;
provided, however, that this Section 10.13 shall not prohibit (1) the issuance
and sale of all, but not less than all, of the issued and outstanding Capital
Stock of any Restricted Subsidiary owned by the Company or any of its Restricted
Subsidiaries in compliance with the other provisions of this Indenture, or (2)
the ownership by directors of director's qualifying shares or the ownership by
foreign nationals of Capital Stock of any Restricted Subsidiary, to the extent
mandated by applicable law.
Section 10.14 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, on any of its or their respective Properties
(including any intercompany notes), whether now owned or hereafter acquired, or
any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Subordinated Indebtedness, the Securities are secured by a Lien on such Property
or proceeds that is senior in priority to such Lien and (y) in the case of any
other Lien, the Securities are directly secured equally and ratably with the
obligation or liability secured by such Lien.
Section 10.15 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 a third party 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 made by the
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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") stating:
(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 14e-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 70 days from the date the Change of
Control occurred;
(4) that any Security, or portion thereof, not or
accepted for tendered 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 10.15, 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 its 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 Company 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 Company 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) 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.
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On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof 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 will promptly execute and the Trustee will promptly authenticate
and mail or make available for delivery to such Holders a new Security 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 10.15, 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
above.
Section 10.16 Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and will 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 and (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 the
assumption by the purchaser of liabilities of the Company (other than
liabilities of the Company that are by their terms subordinated to the
Securities) or any Restricted Subsidiary as a result of which the Company and
its remaining Restricted Subsidiaries are no longer liable.
(b) If the Company or any Restricted Subsidiary engages in an
Asset Sale, the Company may either (x) apply the Net Cash Proceeds thereof to
permanently reduce Senior Indebtedness or to permanently reduce Guarantor Senior
Indebtedness or (y) invest all or any part of the Net Cash Proceeds thereof,
within 365 days after such Asset Sale, in Properties which replace the
Properties that were the subject of the Asset Sale or in Properties that will be
used in the business of the Company or its Restricted Subsidiaries, as the case
may be ("Replacement Assets"). The amount of such Net Cash Proceeds not applied
or invested as provided in this paragraph shall constitute "Excess Proceeds"
subject to disposition as provided below.
(c) When the aggregate amount of Excess Proceeds equals or
exceeds $15,000,000 (the "Trigger Date"), the Company shall make an offer to
purchase, from all Holders of the Securities and holders of any then outstanding
Pari Passu Indebtedness required to be repurchased or repaid on a permanent
basis in connection with an Asset Sale, an aggregate principal amount of
Securities and any then outstanding Pari Passu Indebtedness equal to such Excess
Proceeds as follows:
(1) Not later than the 30th day following the Trigger
Date, the Company shall (i) give to the Trustee in the manner
provided in Section 15.4 hereof and each
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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 $1000) of
Securities that may be purchased out of an amount (the "Payment
Amount") equal to the product of such Excess Proceeds multiplied
by a fraction, the numerator of which is the outstanding
principal amount of the Securities and the denominator of which
is the sum of the outstanding principal amount of the Securities
and any then outstanding Pari Passu Indebtedness (subject to
proration in the event such amount is less than the aggregate
Offered Price (as hereinafter defined) of all Securities
tendered), and (ii) to the extent required by any then
outstanding Pari Passu Indebtedness and provided there is a
permanent reduction in the principal amount of such Pari Passu
Indebtedness, the Company shall make an offer to purchase such
Pari Passu Indebtedness (a "Pari Passu Offer") in an amount (the
"Pari Passu Indebtedness Amount") equal to the excess of the
Excess Proceeds over the Payment Amount.
(2) The offer price for the Securities shall be payable in
cash in an amount equal to 100% of the principal amount of the
Securities tendered pursuant to a Net Proceeds Offer, plus
accrued and unpaid interest, if any, to the date such Net
Proceeds Offer is consummated (the "Offered Price"), 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 or the aggregate amount of the Pari Passu Indebtedness
that is purchased or repaid pursuant to the Pari Passu Offer is
less than the Pari Passu Indebtedness Amount (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 principal amount of Securities
so tendered. Upon completion of a Net Proceeds Offer and a Pari
Passu 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 70 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 Holders Securities at the Offered Price, subject
to the limitations described in the forgoing paragraph (3), (ii)
any information regarding such Net Proceeds Offer required to be
furnished pursuant to Rule 14e-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
10.16, 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
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instructions a Holder must follow in order to have its 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 Company 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 Company
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) 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 Net Proceeds Payment Date, the Company shall (i) accept
for payment Securities or portions thereof 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 will promptly authenticate
and mail or make available for delivery to such Holders a new Security 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 10.16, the Trustee will act
as the Paying Agent.
(e) The Company shall not permit any 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 intends to 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 above.
Section 10.17 Limitation on Transactions with Affiliates. The
Company shall not, and shall not permit any Restricted Subsidiary 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 any Property or the rendering of any service) with or for
the benefit of, any Affiliate of the Company (each, other than a Restricted
Subsidiary, being an "Interested Person"), unless (i) such transaction or series
of transactions are on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that would be available in
a comparable arm's length transaction with unrelated third parties who are not
Interested Persons, (ii) with respect to any one transaction or series of
transactions involving aggregate payments in excess of $1,000,000, the Company
delivers an Officer's Certificate to the Trustee certifying that such
transaction or series of transactions complies with clause (i) above and such
transaction or series of transactions have been approved by a Board Resolution
of the Board of Directors of the
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Company, and (iii) with respect to any one transaction or series of transactions
involving aggregate payments in excess of $10,000,000, the Officer's Certificate
referred to in clause (ii) above also certifies that such transaction or series
of transactions have been approved by a majority of the Disinterested Directors
(or, in the event there are no such Disinterested Directors, that the Company
has obtained a written opinion from an independent nationally recognized
investment banking firm or appraisal firm, in either case specializing or having
a specialty in the type and subject matter of the transaction or series of
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 transactions are
fair from a financial point of view to the Company or such Restricted
Subsidiary); provided, however, that this Section 10.17 will not restrict the
Company from (1) paying reasonable and customary regular compensation and fees
to directors of the Company who are not employees of the Company or any
Restricted Subsidiary or (2) paying dividends on, or making distributions with
respect to, shares of Capital Stock of the Company on a pro rata basis to the
extent permitted by Section 10.10 hereof.
Section 10.18 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
otherwise cause or suffer to exist or 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 to the Company or any other
Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (c) make an Investment in the Company or any other
Restricted Subsidiary or (d) transfer any of its Properties to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
(i) pursuant to an agreement in effect or entered into on the date of this
Indenture, (ii) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance or
restriction is not applicable to any other Person, or the Properties of any
other Person, other than the Person, or the Property of the Person, so acquired
or (iii) existing under any agreement that extends, renews, refinances or places
the agreements containing the restrictions in the foregoing clauses (i) and
(ii), provided that the terms and conditions of any such restrictions are not
materially less favorable to the Holders of the Securities than those under or
pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
Section 10.19 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 10.20 Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.05 through 10.11, Sections 10.13 and 10.14 and Sections
10.17 through 10.19 hereof if, before or after the time for such compliance, the
Holders of at least a majority in principal amount of the Outstanding Securities
and the Subsidiary Guarantors, by Act of such Holders and written agreement of
the Subsidiary Guarantors, waive 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.
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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 _____________, 2001, 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.
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.
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 $1000.
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.
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.
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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
(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 12:00
noon 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.
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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 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 shall be deemed to have been discharged from its 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 under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense 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, 10.1, 10.2, 10.3, 10.4, 13.1 (to the extent it relates to the
Foregoing Sections and Article XII hereof), 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.
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 shall be released from its obligations under any covenant contained in
Article VIII and in Sections 10.6 through 10.19 hereof
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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 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 Sections 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 U.S. 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
(or Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest; 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 11.03 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 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 of 1933, as amended), 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
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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.
(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.
(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
Officer's 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 of 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.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating 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
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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 any
tax, fee or other charge 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.
ARTICLE XIII
GUARANTEES
Section 13.1 Unconditional Guarantee. Each Subsidiary
Guarantor hereby unconditionally, jointly and severally, guarantees (each such
guarantee to be referred to herein as a "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 (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
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(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 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 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 effect. Each Subsidiary Guarantor agrees it shall not be
entitled to 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 Articles VIII and X 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 or conveyance of the
assets of a Subsidiary Guarantor as an entirety or substantially as an entirety,
to the Company or another Subsidiary Guarantor.
(b) Except as set forth in Articles VIII and X hereof, nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of a Subsidiary
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Guarantor with or into a corporation or corporations other than the Company or a
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
or conveyance of the Properties of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to a corporation 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, subject to
Sections 13.2(a) and 13.3 hereof, (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 in Sections 10.1 through 10.19 hereof, and (iii)
each Subsidiary Guarantor hereby covenants and agrees that, upon any such
consolidation, merger, sale or conveyance, 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 the merger), by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the
Trustee, by such corporation formed by such consolidation, or into which the
Subsidiary Guarantor shall have merged, or by the corporation 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
corporation does not have to execute any such supplemental indenture). In the
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, 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 Indenture to
be performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor.
Section 13.3 Release of a Subsidiary Guarantor. 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, such Subsidiary Guarantor shall be deemed
released from all of its Subsidiary Guarantee and related obligations in this
Indenture; provided, however, that any such termination 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 Restricted
Subsidiary shall also terminate upon such sale or other disposition. Each
Subsidiary Guarantor that is designated as an Unrestricted Subsidiary in
accordance with the provisions of this Indenture shall be released from all of
its Subsidiary Guarantee and related obligations set forth in this Indenture for
so long as it remains an Unrestricted Subsidiary. 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. Any Subsidiary Guarantor not so released
remains 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 Guarantor's Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby
confirms 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 any federal or state law. To
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effectuate the foregoing intention, the Holders and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of each 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 (including, but not
limited to, Guarantor Senior Indebtedness) 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 a fraudulent conveyance or fraudulent
transfer under federal or state law. This Section 13.4 is for the benefit of the
creditors of each Subsidiary Guarantor.
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 Notation of Subsidiary
Guarantee. To evidence its Subsidiary Guarantee set forth in Section 13.1
hereof, each Subsidiary Guarantor hereby agrees to execute the notation of
Subsidiary Guarantee in substantially the form set forth in Section 2.4 hereof
to be endorsed on each Security ordered to be authenticated and delivered by the
Trustee, and each Subsidiary Guarantor agrees that this Indenture shall be
executed on behalf of each Subsidiary Guarantor by its President or one of its
Vice Presidents and attested to by one of its Secretaries or Assistant
Secretaries. 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 two Officers, or an Officer and an
Assistant Secretary or one Officer shall sign and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to such notation of Subsidiary
Guarantee 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 the Subsidiary Guarantors. 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.
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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.
Section 13.8 Subsidiary Guarantees Subordinated to Guarantor
Senior Indebtedness. Each Subsidiary Guarantor covenants and agrees, and each
Holder of a Security, by his acceptance of the Subsidiary Guarantees, likewise
covenants and agrees, for the benefit of the holders, from time to time, of
Guarantor Senior Indebtedness, that the payments by such Subsidiary Guarantor in
respect of its Subsidiary Guarantee are subordinated and subject in right of
payment, to the extent and in the manner provided in this Article XIII, to the
prior payment in full of all Guarantor Senior Indebtedness of such Subsidiary
Guarantor, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed or guaranteed; provided, however, that the Subsidiary
Guarantee of such Subsidiary Guarantor, the Indebtedness represented thereby and
the payment of the principal of (and premium, if any, on) and the interest on
the Securities pursuant to such Subsidiary Guarantee in all respects shall rank
pari passu with, or prior to, all existing and future unsecured indebtedness
(including, without limitation, Indebtedness) of such Subsidiary Guarantor that
is subordinated to its Guarantor Senior Indebtedness.
This Article XIII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Guarantor Senior Indebtedness, and such provisions are made for the
benefit of the holders of Guarantor Senior Indebtedness, and such holders are
made obligees hereunder and any of them may enforce such provisions.
Section 13.9 Subsidiary Guarantors Not to Make Payments with
Respect to Subsidiary Guarantees in Certain Circumstances.
(a) No payment or distribution of any Property of any
Subsidiary Guarantor of any kind or character (other than Permitted Guarantor
Junior Securities) may be made by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee upon the happening of any default in respect of the payment
or required prepayment of any of its Guarantor Senior Indebtedness when the same
becomes due and payable (a "Subsidiary Guarantor Payment Default"), unless and
until such Subsidiary Guarantor Payment Default shall have been cured or waived
in writing or shall have ceased to exist or such Guarantor Senior Indebtedness
shall have been paid in full or otherwise discharged, after which such
Subsidiary Guarantor shall resume making any and all required payments in
respect of its Subsidiary Guarantee, including any missed payments.
(b) Upon the happening of any event (other than a Subsidiary
Guarantor Payment Default) the occurrence of which entitles one or more Persons
to accelerate the maturity of any Designated Guarantor Senior Indebtedness (a
"Subsidiary Guarantor Non-payment Default"), and receipt by the applicable
Subsidiary Guarantor and a Responsible Officer of the Trustee, on behalf of the
Trustee, of written notice thereof from one or more of the holders of such
Designated Guarantor Senior Indebtedness or their representative (a "Subsidiary
Guarantor Payment Notice"), then, unless and until such Subsidiary Guarantor
Non-payment Default shall have been cured or waived in writing or shall have
ceased to exist or such Designated Guarantor Senior Indebtedness is paid in full
or otherwise discharged or the holders (or a representative of the holders) of
such Designated Guarantor Senior Indebtedness give their written approval, no
payment or distribution
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shall be made by such Subsidiary Guarantor in respect of its Subsidiary
Guarantee (other than Permitted Guarantor Junior Securities); provided, however,
that these provisions will not prevent the making of any payment for more than
179 days after a Subsidiary Guarantor Payment Notice shall have been given after
which, subject to Section 13.9(a), such Subsidiary Guarantor will resume making
any and all required payments in respect of its Subsidiary Guarantee, including
any missed payments. Notwithstanding any other provision of this Indenture, only
one Subsidiary Guarantor Payment Notice shall be given with respect to any
Subsidiary Guarantee within any 360 consecutive day period. No Subsidiary
Guarantor Non-payment Default with respect to Designated Guarantor Senior
Indebtedness that existed or was continuing on the date of any Subsidiary
Guarantor Payment Notice with respect to the Designated Guarantor Senior
Indebtedness initiating such Subsidiary Guarantor Payment Notice shall be, or
can be, made the basis for the commencement of a subsequent Subsidiary Guarantor
Payment Notice with respect to such Subsidiary Guarantee, whether or not within
a period of 360 consecutive days, unless such default shall have been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent action, or any breach of any financial covenant for a period
commencing after the date of commencement of such Subsidiary Guarantor Payment
Notice, that, in either case, would give rise to a Subsidiary Guarantor
Non-payment Default pursuant to any provision under which a Subsidiary Guarantor
Non-payment Default previously existed or was continuing shall constitute a new
Subsidiary Guarantor Non-payment Default for this purpose; provided that, in the
case of a breach of a particular financial covenant, such Subsidiary Guarantor
shall have been in compliance for at least one full 90 consecutive day period
commencing after the date of commencement of such Subsidiary Guarantor Payment
Notice). In no event shall a Subsidiary Guarantor Payment Notice extend beyond
179 days from the date of its receipt and there must be a 181 consecutive day
period in any 360 consecutive day period during which no Subsidiary Guarantor
Payment Notice is in effect with respect to such Subsidiary Guarantee.
(c) In the event that, notwithstanding the foregoing, a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 13.9, then and in such event such payment
shall be paid over and delivered forthwith to the Company. In the event that a
Subsidiary Guarantor shall make any payment in respect of its Subsidiary
Guarantee to the Trustee and a Responsible Officer of the Trustee, on behalf of
the Trustee, shall receive written notice of a Subsidiary Guarantor Payment
Default or a Subsidiary Guarantor Non-payment Default from one or more of the
Holders of Guarantor Senior Indebtedness (or their representative) prior to
making any payment to Holders in respect of the Subsidiary Guarantee and prior
to 11:00 a.m. Eastern Time on the date which is two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose, such payments shall be paid over by the Trustee and delivered forthwith
to the Company. Each Subsidiary Guarantor shall give prompt written notice to
the Trustee of any default under any of its Guarantor Senior Indebtedness or
under any agreement pursuant to which its Guarantor Senior Indebtedness may have
been issued.
Section 13.10 Subsidiary Guarantees Subordinated to Prior
Payment of All Guarantor Senior Indebtedness upon Dissolution, etc. Upon any
distribution of Properties of any Subsidiary Guarantor or payment on behalf of a
Subsidiary Guarantor in the event of any Insolvency or Liquidation Proceeding
with respect to such Subsidiary Guarantor:
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(a) the holders of such Subsidiary Guarantor's Guarantor
Senior Indebtedness shall be entitled to receive payment in full of such
Guarantor Senior Indebtedness, or provision must be made for such payment,
before the Holders are entitled to receive any direct or indirect payment or
distribution of any kind or character, whether in cash, property or securities
(other than Permitted Guarantor Junior Securities), on account of any payment in
respect of such Subsidiary Guarantor's Subsidiary Guarantee;
(b) any direct or indirect payment or distribution of
Properties of such Subsidiary Guarantor of any kind or character, whether in
cash, property or securities (other than a payment or distribution in the form
of Permitted Guarantor Junior Securities), by set-off or otherwise, to which the
Holders or the Trustee, on behalf of the Holders, would be entitled except for
the provisions of this Article XIII, shall be paid by the Subsidiary Guarantor
or by any liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of such Guarantor Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Guarantor
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Guarantor Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all such
Guarantor Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 13.10, any direct or indirect payment or distribution
of Properties of such Subsidiary Guarantor of any kind or character, whether in
cash, property or securities (other than a payment or distribution in the form
of Permitted Guarantor Junior Securities), shall be received by the Trustee or
the Holders before all such Guarantor Senior Indebtedness is paid in full or
otherwise discharged, such Properties shall be received and held in trust for
and shall be paid over to the holders of such Guarantor Senior Indebtedness
remaining unpaid or their representatives, for application to the payment of
such Guarantor Senior Indebtedness until all such Guarantor Senior Indebtedness
shall have been paid or provided for in full, after giving effect to any
concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness.
The Company or a Subsidiary Guarantor shall give prompt
written notice to a Responsible Officer of the Trustee, on behalf of the
Trustee, of the occurrence of any Insolvency or Liquidation Proceeding with
respect to such Subsidiary Guarantor.
Section 13.11 Holders to be Subrogated to Rights of Holders of
Guarantor Senior Indebtedness. After the payment in full of all Guarantor Senior
Indebtedness of a Subsidiary Guarantor, the Holders shall be subrogated (equally
and ratably with the holders of all other Indebtedness of such Subsidiary
Guarantor which by its express terms is subordinated to such Guarantor Senior
Indebtedness to substantially the same extent as such Subsidiary Guarantee is so
subordinated and which is entitled to like rights of subrogation as a result of
payments made to the holders of such Guarantor Senior Indebtedness) to the
rights of the holders of such Guarantor Senior Indebtedness to receive payments
or distributions of cash, property and securities of such Subsidiary Guarantor
applicable to such Guarantor Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of such Guarantor Senior Indebtedness
by or on behalf of such Subsidiary Guarantor
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or by or on behalf of the Holders by virtue of this Article XIII which otherwise
would have been made to the Holders shall, as between such Subsidiary Guarantor,
its creditors other than the holders of Guarantor Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by such
Subsidiary Guarantor to or on account of such Guarantor Senior Indebtedness, it
being understood that the subordination provisions of this Article XIII are, and
are intended solely for, the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Guarantor Senior Indebtedness, on
the other hand.
Section 13.12 Obligations of the Subsidiary Guarantors
Unconditional. Nothing contained in this Article XIII or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors under the Subsidiary Guarantees, or is intended to or shall affect
the relative rights of the Holders and creditors of the Subsidiary Guarantors,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon Default under
this Indenture subject to the rights, if any, under this Article XIII of the
holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of any Subsidiary Guarantor received upon the exercise of any such
remedy. Upon any distribution of Properties of a Subsidiary Guarantor referred
to in this Article XIII, the Trustee, subject to the provisions of Section 6.2
hereof, and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of a trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, or agent or other person
making any distribution to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the related Guarantor Senior Indebtedness and other
indebtedness of such Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XIII.
Section 13.13 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice. The Trustee shall not at any time be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment to or by the Trustee, unless a Responsible Officer of the Trustee,
on behalf of the Trustee, shall have received at the Corporate Trust Office
written notice thereof from a Subsidiary Guarantor or from one or more holders
of Guarantor Senior Indebtedness or Designated Guarantor Senior Indebtedness, in
the case of a Subsidiary Guarantor Non-payment Default, or from any
representative thereof; and, prior to the receipt of any such written notice,
the Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled to
assume conclusively that no such facts exist. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Guarantor Senior Indebtedness or Designated Guarantor Senior
Indebtedness, in the case of a Subsidiary Guarantor Non-payment Default (or a
representative on behalf of such holder), to establish that such notice has been
given by a holder of Guarantor Senior Indebtedness or Designated Guarantor
Senior Indebtedness, in the case of a Subsidiary Guarantor Non-payment Default,
or a representative on behalf of any such holder or holders.
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Section 13.14 Application by Trustee of Money Deposited with
it. Except as provided in Article XIV, any deposit of money by a Subsidiary
Guarantor with the Trustee or any Paying Agent (whether or not in trust) for any
payment in respect of the related Subsidiary Guarantee shall be subject to the
provisions of Sections 13.8, 13.9, 13.10 and 13.11 hereof except that, if prior
to 11:00 a.m. Eastern time on the date which is two Business Days prior to the
date on which by the terms of this Indenture any such money may become payable
for any purpose, the Trustee or, in the case of any such deposit of money with a
Paying Agent, the Paying Agent shall not have received with respect to such
money the notice provided for in Section 13.13 hereof, then the Trustee or such
Paying Agent, as the case may be, shall have full power and authority to receive
such money and to apply the same to the purpose for which it was received, and
shall not be affected by any notice to the contrary which may be received by it
on or after 11:00 a.m., Eastern time, two Business Days prior to such payment
date. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XIII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article XIII, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Guarantor Senior Indebtedness but shall have only such
obligations to such holders as are expressly set forth in this Article XIII.
Section 13.15 Subordination Rights Not Impaired by Acts or
Omissions of Subsidiary Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior Indebtedness
of a Subsidiary Guarantor to enforce subordination as provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of such Subsidiary Guarantor or by any act or failure to act by any
such holder, or by any noncompliance by such Subsidiary Guarantor with the terms
of this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the preceding
paragraph of this Section, the holders of Guarantor Senior Indebtedness may, at
any time and from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the subordination
or other benefits provided in this Article, or the obligations hereunder of the
Holders of the Securities to the holders of Guarantor Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew, exchange, amend, increase or
alter, Guarantor Senior Indebtedness or the term of any instrument evidencing
the same or any agreement under which Guarantor Senior Indebtedness is
outstanding or any liability of any obligor thereon (unless such change,
extension or alteration results in such Indebtedness no longer being Guarantor
Senior Indebtedness as defined in this Indenture); (2) sell, exchange, release
or otherwise deal with any Property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (3) settle or compromise any Guarantor Senior
Indebtedness or any liability of any obligor thereon
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or release any Person liable in any manner for the collection of Guarantor
Senior Indebtedness; and (4) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 13.16 Holders Authorize Trustee to Effectuate
Subordination of Subsidiary Guarantees. Each Holder, by his acceptance thereof,
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article XIII and appoints the Trustee as his attorney-in-fact for such
purpose, including, in the event of any Insolvency or Liquidation Proceeding
with respect to any Subsidiary Guarantor, the immediate filing of a claim for
the unpaid balance of his Securities pursuant to the related Subsidiary
Guarantee in the form required in said proceedings and the causing of said claim
to be approved.
Section 13.17 Right of Trustee to Hold Guarantor Senior
Indebtedness. The Trustee shall be entitled to all of the rights set forth in
this Article XIII in respect of any Guarantor Senior Indebtedness at any time
held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 13.18 Article XIII Not to Prevent Events of Default.
The failure to make a payment on account of the Subsidiary Guarantees by reason
of any provision in this Article XIII shall not be construed as preventing the
occurrence of an Event of Default under this Indenture.
Section 13.19 Payment. For purposes of this Article XIII, a
payment with respect to any Subsidiary Guarantee or with respect to principal of
or interest on any Security or any Subsidiary Guarantee shall include, without
limitation, payment of principal of and interest on any Security, any depositing
of funds under Article IV hereof, any payment on account of any repurchase or
redemption of any Security and any payment or recovery on any claim (whether for
rescission or damages and whether based on contract, tort, duty imposed by law,
or any other theory of liability) relating to or arising out of the offer, sale
or purchase of any Security.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1 Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article XIV, the Indebtedness
represented by the Securities and the payment of and distributions of or with
respect to the Senior Subordinated Note Obligations are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full in cash or cash equivalents of all amounts payable under
all existing and future Senior Indebtedness.
This Article XIV shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold Senior Indebtedness; and such
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provisions are made for the benefit of the holders of Senior Indebtedness; and
suchholder are made obligees hereunder and they or each of them may enforce such
provisions.
Section 14.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of an Insolvency or Liquidation Proceeding with respect to the
Company:
(1) the holders of all Senior Indebtedness shall
be entitled to receive payment in full in cash or cash
equivalents of all Senior Indebtedness before the Holders of
the Securities are entitled to receive any direct or
indirect payment or distribution of any kind or character
(excluding Permitted Junior Securities of the Company) on
account of Senior Subordinated Note Obligations; and
(2) any direct or indirect payment or distribution
of assets of the Company of any kind or character, whether
in cash, property or securities (excluding Permitted Junior
Securities of the Company), by set-off or otherwise, to
which the Holders or the Trustee would be entitled but for
the provisions of this Article shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or cash
equivalents of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the
foregoing provisions of this Section 14.2, the Trustee or
the Holder of any Note shall have received any payment or
distribution of properties or assets of the Company of any
kind or character, whether in cash, property or securities,
by set off or otherwise, in respect of any Senior
Subordinated Note Obligations before all Senior Indebtedness
is paid or provided for in full, then and in such event such
payment or distribution (excluding Permitted Junior
Securities of the Company) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the
Company for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders
of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions set
forth in Article VIII hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Article if the person formed by such consolidation or the surviving entity of
such merger or the person which acquires by conveyance, transfer or lease such
properties
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and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in such Article VIII hereof to the extent applicable.
Section 14.3 Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 14.2 hereof shall be applicable, upon the
occurrence of a Payment Default, no direct or indirect payment or distribution
of any assets of the Company of any kind or character shall be made by or on
behalf of the Company on account of the Senior Subordinated Note Obligations or
on account of the purchase or redemption or other acquisition of any Senior
Subordinated Note Obligations unless and until such Payment Default shall have
been cured or waived or shall have ceased to exist or such Senior Indebtedness
shall have been discharged or paid in full in cash in cash equivalents, after
which, subject to Section 14.2 hereof (if applicable), the Company shall resume
making any and all required payments in respect of the Notes and the other
Senior Subordinated Note Obligations, including any missed payments.
(b) Unless Section 14.2 hereof shall be applicable, upon (1)
the occurrence of a Non-payment Default and (2) receipt by the Trustee from a
Senior Representative of written notice (a "Payment Blockage Notice") of such
occurrence stating that such notice is a Payment Blockage Notice pursuant to
this Section 14.3(b) of this Indenture, no payment or distribution of any assets
of the Company of any kind or character shall be made by or on behalf of the
Company on account of any Senior Subordinated Note Obligations or on account of
the purchase or redemption or other acquisition of Senior Subordinated Note
Obligations for a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of such notice unless and until the earlier to occur of
the following events (subject to any blockage of payments that may then be in
effect under Section 14.2 hereof or subsection (a) of this Section 14.3 hereof)
(w) 179 days shall have elapsed since receipt of such written notice by the
Trustee, (x) the date, as set forth in a written notice to the Company or the
Trustee from the Senior Representative initiating such Payment Blockage Period,
on which such Non-payment Default shall have been cured or waived or shall have
ceased to exist (provided that no other Payment Default or Non-Payment Default
has occurred and is then continuing after giving effect to such cure or waiver),
(y) such Designated Senior Indebtedness shall have been discharged or paid in
full in cash or cash equivalents or (z) such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the Senior
Representative initiating such Payment Blockage Period, after which, subject to
Sections 14.2 and 14.3(a) hereof (if applicable), the Company shall promptly
resume making any and all required payments in respect of the Senior
Subordinated Note Obligations, including any missed payments. Notwithstanding
any other provision of this Indenture, only one Payment Blockage Period may be
commenced within any 360 consecutive day period. No Non-payment Default with
respect to Designated Senior Indebtedness that existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or can be, made the basis for the commencement of a second Payment Blockage
Period, whether or not within a period of 360 consecutive days, unless such
default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenant for a period commencing after the date of
commencement of such Payment Blockage Period, that, in either case, would give
rise to a Non-payment Default pursuant to any provision under which a
Non-payment Default previously existed or was continuing shall constitute a new
Non-payment Default for this
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purpose; provided that, in the case of a breach of a particular financial
covenant, the Company shall have been in compliance for at least one full 90
consecutive day period commencing after the date of commencement of such Payment
Blockage Period). In no event shall a Payment Blockage Period extend beyond 179
days from the date of the receipt of the notice referred to in clause (2) hereof
and there must be a 181 consecutive day period in any 360 consecutive day period
during which no Payment Blockage Period is in effect pursuant to this Section
14.3(b).
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment or
distribution prohibited by the foregoing provisions of this Section 14.3, then
and in such event such payment or distribution shall be paid over and delivered
forthwith to the Senior Representatives or as a court of competent jurisdiction
shall direct for application to the payment of any due and unpaid Senior
Indebtedness, to the extent necessary to pay all such due and unpaid Senior
Indebtedness in cash or cash equivalents, after giving effect to any concurrent
payment to or for the holders of Senior Indebtedness.
Section 14.4 Trustee's Relation to Senior Indebtedness. With
respect to the holders of Senior Indebtedness, notwithstanding any other
provisions of the Indenture, the Trustee undertakes to perform or to observe
only such of its covenants and obligations 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 and the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall mistakenly pay over or deliver to Holders, the Company
or any other person moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article XIV or otherwise.
Section 14.5 Subrogation to Rights of Holders of Senior
Indebtedness. Upon the payment in full of cash or cash equivalents of all Senior
Indebtedness, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Indebtedness to substantially the same extent as
the Securities are so subordinated and which is entitled to like rights of
subrogation as a result of the payments made to the holders of Senior
Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of, premium, if any, and interest
on the Securities shall be paid in full in cash or cash equivalents. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article XIV, and no payments over pursuant to the provisions of this
Article XIV to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be payment
or distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XIV shall
have been applied, pursuant to the provisions of this Article XIV, to the
payment of all amounts payable under the Senior Indebtedness of the Company and
such payments or distributions received by such holders of such Senior
Indebtedness shall be in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full in cash or cash
equivalents, then and in such case the Holders shall be
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entitled to receive the amount of such excess from the Company upon and to the
extent of any return of such excess by the holders of such Senior Indebtedness.
Section 14.6 Provisions Solely To Define Relative Rights. The
provisions of this Article XIV are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article XIV or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article XIV of the holders of Senior Indebtedness.
The failure to make a payment on account of any Senior
Subordinated Note Obligations by reason of any provision of this Article XIV
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 14.7 Trustee To Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article XIV and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of the Company whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the Indebtedness of the Company
owing to such Holder in the form required in such proceedings and the causing of
such claim to be approved. If the Trustee does not file such a claim prior to 30
days before the expiration of the time to file such a claim, the holders of
Senior Indebtedness, or any Senior Representative, may file such a claim on
behalf of Holders of the Securities.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 14.8, 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 of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XIV or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness,
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do any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or any liability of any obligor thereon; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (3) settle or compromise any Senior
Indebtedness or any liability of any obligor thereon or release any person
liable in any manner for the collection or payment of Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the Company and any
other person; provided, however, that in no event shall any such actions limit
the right of the Holders of the Securities to take any action to accelerate the
maturity of the Notes pursuant to Article V hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
Section 14.9 Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. 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 which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee, on behalf of
the Trustee, shall have received written notice thereof from the Company or a
holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of this Section 14.9, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 14.9 at least two Business days
prior to the date upon which by the terms hereof any money may become payable
for any purpose under this Indenture (including, without limitation, the payment
of the principal of, premium, if any, or interest on any Security), then,
anything herein contained to the contrary notwithstanding but without limiting
the rights and remedies of the holders of Senior Indebtedness or any trustee,
fiduciary or agent thereof, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date; nor shall the
Trustee be charged with knowledge of the curing of any such default or the
elimination of the act or condition preventing any such payment unless and until
the Trustee shall have received an Officers' Certificate to such effect.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee
shall be entitled to rely on the delivery to it of a written notice to a
Responsible Officer of the Trustee, on behalf of the Trustee, by a person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XIV, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article XIV, and if such evidence is not furnished, the
Trustee may defer any
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payment to such person pending judicial determination as to the right of such
person to receive such payment.
Section 14.10 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article XIV, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders, shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereof, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIV.
Section 14.11 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article XIV with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article XIV shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 6.6 hereof.
Section 14.12 Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article XIV shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article XIV in addition to or in place of the Trustee; provided, however, that
Section 14.11 hereof shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
Section 14.13 No Suspension of Remedies. Nothing contained in
this Article XIV shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article V hereof or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article XIV of
the holders, from time to time, of Senior Indebtedness.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions. Upon any
application or request by the Company and/or any Subsidiary Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
and/or such Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture. Each such certificate and each such 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such 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
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, 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 of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which 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 of an Officer or Officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, 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
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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, wavier or other 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
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document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or
any Subsidiary Guarantor shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing and
delivered in person or mailed by certified or registered mail
(return receipt requested) to the Trustee at its Corporate
Trust Office; 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 and delivered in person or mailed by certified or
registered mail (return receipt requested) to the Company
addressed to it or a Subsidiary Guarantor, as applicable, at
the Company's principal office located at 8440 Jefferson
Highway, Suite 420, Baton Rouge, Louisiana 70809, 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 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 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.
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Section 15.8 Separability Clause. 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 therefore 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, the holders of Senior Indebtedness, the
holders of Guarantor Senior Indebtedness and, to the extent set forth in Section
13.4 hereof, creditors of Subsidiary Guarantors) 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 IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE
COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES 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 A SUBSIDIARY GUARANTEE,
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 of 1939, as amended, 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 Sections 310 and 318, inclusive, 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 sections, such imposed duties or incorporated
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
Section 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 Guarantees) 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 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.
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Section 15.12 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or 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.
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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ISSUER:
FLORES & RUCKS, INC.,
a Delaware corporation
By:/s/ Richard G. Zepernick, Jr.
-----------------------------------
Name: Richard G. Zepernick, Jr.
Title: Chief Operating Officer
SUBSIDIARY GUARANTOR:
FLORES & RUCKS, INC.,
a Louisiana corporation
By:/s/ Richard G. Zepernick, Jr.
-----------------------------------
Name: Richard G. Zepernick, Jr.
Title: Chief Operating Officer
TRUSTEE:
FLEET NATIONAL BANK,
as Trustee
By:/s/ Elizabeth C Hammer
-----------------------------------
Name: Elizabeth C. Hammer
Title: Vice President
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