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EXHIBIT 4.3
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ENERGY CORPORATION OF AMERICA
As Issuer
9 1/2% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
Dated as of May 23, 1997
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THE BANK OF NEW YORK
As Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6;11.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3;11.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3-10.5
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5;11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.11
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
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318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
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N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitions . . . . . . . . . . . . . . . . . . 22
Section 1.3. Incorporation By Reference of Trust Indenture Act . . 23
Section 1.4. Rules of Construction . . . . . . . . . . . . . . . . 23
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . 24
Section 2.2. Execution and Authentication . . . . . . . . . . . . 26
Section 2.3. Registrar and Paying Agent . . . . . . . . . . . . . 27
Section 2.4. Paying Agent To Hold Money in Trust . . . . . . . . . 27
Section 2.5. Securityholder Lists . . . . . . . . . . . . . . . . 28
Section 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . 28
Section 2.7. Replacement Securities . . . . . . . . . . . . . . . 35
Section 2.8. Outstanding Securities . . . . . . . . . . . . . . . 36
Section 2.9. Temporary Securities . . . . . . . . . . . . . . . . 36
Section 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . 37
Section 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . 37
Section 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 37
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . 37
Section 3.2. Selection of Securities to Be Redeemed . . . . . . . 38
Section 3.3. Notice of Redemption . . . . . . . . . . . . . . . . 38
Section 3.4. Effect of Notice of Redemption . . . . . . . . . . . 39
Section 3.5. Deposit of Redemption Price . . . . . . . . . . . . . 40
Section 3.6. Securities Redeemed in Part . . . . . . . . . . . . . 40
Section 3.7. Optional Redemption . . . . . . . . . . . . . . . . . 40
Section 3.8. Mandatory Redemption . . . . . . . . . . . . . . . . 41
Section 3.9. Offer to Purchase By Application of Excess Proceeds. . 41
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ARTICLE 4
COVENANTS
Section 4.1. Payment of Securities . . . . . . . . . . . . . . . . 44
Section 4.2. Maintenance of Office or Agency . . . . . . . . . . . 44
Section 4.3. SEC Reports . . . . . . . . . . . . . . . . . . . . . 45
Section 4.4. Compliance Certificate . . . . . . . . . . . . . . . 45
Section 4.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.6. Limitations on Restricted Payments . . . . . . . . . 46
Section 4.7. Limitations on Incurrence of Indebtedness and
Issuance of Disqualified Stock . . . . . . . . . . . . . . . 49
Section 4.8. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries . . . . . . . . . . . . 52
Section 4.9. Asset Sales . . . . . . . . . . . . . . . . . . . . . 53
Section 4.10. Liens . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.11. Offer to Repurchase Upon Change of Control . . . . . 55
Section 4.12. Transactions with Affiliates . . . . . . . . . . . . 57
Section 4.13. Sale and Leaseback Transactions . . . . . . . . . . 58
Section 4.14. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . 58
Section 4.15. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries . . . . . . . . . . . . . . 59
Section 4.16. Corporate Existence . . . . . . . . . . . . . . . . 60
Section 4.17. No Layering . . . . . . . . . . . . . . . . . . . . 60
Section 4.18. Business Activities . . . . . . . . . . . . . . . . 61
ARTICLE 5
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Substantially
All Assets . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 5.2. Successor Corporation Substituted . . . . . . . . . . 62
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default . . . . . . . . . . . . . . . . . . 63
Section 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . 65
Section 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . 66
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Section 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . 66
Section 6.5. Control by Majority . . . . . . . . . . . . . . . . . 66
Section 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . 67
Section 6.7. Rights of Holders of Securities to Receive Payment . . 67
Section 6.8. Collection Suit by Trustee . . . . . . . . . . . . . 67
Section 6.9. Trustee May File Proofs of Claim . . . . . . . . . . 68
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . 68
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . 69
Section 6.12. Stay, Extension and Usury Laws . . . . . . . . . . . 69
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . 70
Section 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . 71
Section 7.3. Individual Rights of Trustee . . . . . . . . . . . . 72
Section 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . 72
Section 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . 73
Section 7.6. Reports by Trustee to Holders of the Securities . . . 73
Section 7.7. Compensation and Indemnity . . . . . . . . . . . . . 73
Section 7.8. Replacement of Trustee . . . . . . . . . . . . . . . 74
Section 7.9. Successor Trustee by Merger, etc. . . . . . . . . . 76
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . 76
Section 7.11. Preferential Collection of Claims Against Company . 76
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.2. Legal Defeasance and Discharge . . . . . . . . . . . 76
Section 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . 77
Section 8.4. Conditions to Legal or Covenant Defeasance . . . . . 78
Section 8.5. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions . . . . . . . 79
Section 8.6. Repayment to Company . . . . . . . . . . . . . . . . 80
Section 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . . 80
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . 81
Section 9.1. Without Consent of Holders of Securities . . . . . . 81
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Section 9.2. With Consent of Holders of Securities . . . . . . . . 82
Section 9.3. Compliance with Trust Indenture Act . . . . . . . . . 84
Section 9.4. Revocation and Effect of Consents . . . . . . . . . . 84
Section 9.5. Notation on or Exchange of Securities . . . . . . . . 84
Section 9.6. Trustee to Sign Amendment, etc. . . . . . . . . . . 84
ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate . . . . . . . . . . . . . . 85
Section 10.2. Designated Senior Debt . . . . . . . . . . . . . . . 85
Section 10.3. Liquidation; Dissolution; Bankruptcy . . . . . . . . 85
Section 10.4. Default on Designated Senior Debt . . . . . . . . . 86
Section 10.5. Acceleration of Securities . . . . . . . . . . . . . 87
Section 10.6. When Distribution Must Be Paid Over . . . . . . . . 88
Section 10.7. Notice by Company . . . . . . . . . . . . . . . . . 88
Section 10.8. Subrogation . . . . . . . . . . . . . . . . . . . . 88
Section 10.9. Relative Rights . . . . . . . . . . . . . . . . . . 89
Section 10.10. Subordination May Not Be Impaired by Company . . . 89
Section 10.11. Payment, Distribution or Notice to Representative . 89
Section 10.12. Rights of Trustee and Paying Agent . . . . . . . . 90
Section 10.13. Authorization to Effect Subordination . . . . . . . 90
Section 10.14. Amendments . . . . . . . . . . . . . . . . . . . . 91
Section 10.15. No Waiver of Subordination Provisions . . . . . . . 91
Section 10.16. Not To Prevent Events of Default or Limit Right To
Accelerate . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.17. Trust Moneys Not Subordinated . . . . . . . . . . . 91
Section 10.18. "Trustee" to Include Paying Agent . . . . . . . . . 92
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls . . . . . . . . . . . . 92
Section 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.3. Communication by Holders of Securities with Other
Holders of Securities . . . . . . . . . . . . . . . . . . . 93
Section 11.4. Certificate and Opinion as to Conditions Precedent. . 93
Section 11.5. Statements Required in Certificate or Opinion . . . 94
Section 11.6. Acts of Holders; Rules by Trustee and Agents . . . . 95
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Section 11.7. No Personal Liability of Directors, Officers,
Employees and Stockholders . . . . . . . . . . . . . . . . . 95
Section 11.8. Governing Law . . . . . . . . . . . . . . . . . . . 95
Section 11.9. No Adverse Interpretation of Other Agreements . . . 95
Section 11.10. Successors . . . . . . . . . . . . . . . . . . . . . 96
Section 11.11. Severability . . . . . . . . . . . . . . . . . . . . 96
Section 11.12. Counterpart Originals . . . . . . . . . . . . . . . 96
Section 11.13. Table of Contents, Headings, Etc. . . . . . . . . . 96
EXHIBITS
Exhibit A FORM OF INITIAL NOTE
Exhibit B FORM OF EXCHANGE NOTE
Exhibit C FORM OF TRANSFEREE LETTER OF REPRESENTATIONS
Exhibit D FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of May 23, 1997 between Energy Corporation of
America, a West Virginia corporation (the "Company"), as issuer, and The Bank
of New York, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 9 1/2%
Senior Subordinated Notes due 2007 of the Company (the "Initial Notes") and, if
and when issued in exchange for Initial Notes as provided in the Registration
Rights Agreement (as hereinafter defined), the Company's 9 1/2% Senior
Subordinated Notes due 2007 (the "Exchange Notes" and, together with the
Initial Notes, the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Debt" means, with respect to any specified Person (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling,""controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise; provided that beneficial ownership of 10% or more of the voting
securities of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" by a Person means (i) the sale, lease, conveyance or
other disposition (but excluding the creation of a Lien) of any assets
including, without limitation, by way of a sale and leaseback (provided that
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company and its Restricted Subsidiaries taken as a whole
shall be governed by Sections 4.11 and/or 5.1 hereof and not by Section 4.9
hereof), and (ii) the issuance or sale by such Person or any of its Restricted
Subsidiaries of Equity Interests of any of such Person's Subsidiaries
(including the sale by the Company or a Restricted Subsidiary of Equity
Interests in an Unrestricted Subsidiary), in the case of either clause (i) or
(ii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $5 million or 1% of Total
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Assets at the time of such transaction or (b) for net proceeds in excess of the
greater of $5 million or 1% of Total Assets at the time of such transaction.
Notwithstanding the foregoing, the following shall not be deemed to be Asset
Sales: (i) a transfer of assets by such Person to a Wholly Owned Restricted
Subsidiary of such Person by a Wholly Owned Restricted Subsidiary of such
Person to such Person or to another Wholly Owned Restricted Subsidiary of such
Person, (ii) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary of such Person to such Person or to another Wholly Owned Restricted
Subsidiary of such Person, (iii) the making of a Restricted Payment or a
Permitted Investment that is permitted by Section 4.6, (iv) the abandonment,
farm-out, lease or sublease of undeveloped oil and gas properties in the
ordinary course of business, (v) the trade or exchange by such Person or any
Restricted Subsidiary of such Person of any oil and gas property owned or held
by such Person or such Restricted Subsidiary for any oil and gas property or
properties owned or held by another Person, which the Board of Directors of the
Company determines in good faith to be of approximately equivalent value, (vi)
the sale or transfer of oil, natural gas, natural gas liquids or hydrocarbons
or mineral products or surplus or obsolete equipment in the ordinary course of
business, (vii) the sale or lease of equipment, inventory, accounts receivable
or obsolete or surplus equipment or assets in the ordinary course of business
consistent with past practice, (viii) the trade or exchange by the Company or
any Restricted Subsidiary of the Company of any oil and gas property or
properties owned or held by the Company or such Restricted Subsidiary for any
oil and gas property or properties owned or held by another Person provided
that the fair market value of the properties traded or exchanged by the Company
or such Restricted Subsidiary (including any cash or Cash Equivalents 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) to be received by the Company or such Restricted
Subsidiary as determined in good faith by (A) any officer of the Company if
such fair market value is less than $5 million and (B) the Board of Directors
of the Company as certified by a resolution delivered to the Trustee if such
fair market value is equal to or in excess of $5 million.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). As used in the preceding sentence, the
"net rental payment" 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.
"Bankruptcy Code" means Title 11 of the United States Code, as
amended.
"Board of Directors" means the Board of Directors of the Company
or a Subsidiary Guarantor, if any, or any authorized committee of such Board of
Directors.
"Business Day" means any day other than a Legal Holiday.
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"Capital Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed as to full and timely
payment or insured by the United States government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition, (iii) demand or time deposits,certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Thompson Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having a rating of at least P1 from Moody's
(or its successor) and a rating of at least A1 from S&P (or its successor) and
(vi) investments in money market or other mutual funds substantially all of
whose assets comprise securities of the types described in clauses (ii) through
(v) above.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole to any "person" or group of related "persons" (a "Group") (as
such terms are used in Section 13(d)(3) of the Exchange Act), (ii) the adoption
of a plan relating to the liquidation or dissolution of the Company, (iii) the
consummation of any transaction (including, without limitation, any purchase,
sale, acquisition, disposition, merger or consolidation) the result of which is
that any "person" (as defined above) or Group becomes the "beneficial owner"
(as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act)
of more than 35% of the outstanding Voting Stock of the Company having the
right to elect directors under ordinary circumstances other than any such
transaction where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for voting stock of the surviving corporation which is not
Disqualified Stock or (B) John Mork and Julie Mork continue to own, directly or
indirectly, not less than a majority of the Voting Stock of the surviving
corporation immediately after such transaction
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or (iv) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors.
"Closing Date" the date of the closing of the sale of the
Securities offered pursuant to the Offering.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale (together with any related provision for taxes),
to the extent such losses were included in computing such Consolidated Net
Income, plus (ii) an amount equal to the provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period
(including state franchise taxes), to the extent that such provision for taxes
was deducted in computing such Consolidated Net Income, plus (iii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued (including, without limitation, amortization of
original issue discount and capitalized debt issuance costs, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Interest Rate
Hedging Agreements), to the extent that any such expense was deducted in
computing such Consolidated Net Income, plus (iv) depreciation, depletion and
amortization expenses (including amortization of goodwill and other
intangibles) for such Person and its Restricted Subsidiaries for such period to
the extent that such depreciation, depletion and amortization expenses were
deducted in computing such Consolidated Net Income, plus (v) exploration and
impairment expenses for such Person and its Restricted Subsidiaries for such
period to the extent such expenses were deducted in computing such Consolidated
Net Income, plus (vi) other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for cash
charges in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such other noncash charges were deducted in computing
such Consolidated Net Income, in each case, on a consolidated basis and
determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation,
depletion and amortization and other non-cash charges and expenses of, a
Restricted Subsidiary of the referent Person shall be added to Consolidated Net
Income to compute Consolidated Cash Flow only to the extent (and in the same
proportion) that the Net Income of such Restricted Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to such Person by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
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"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof during such period, (ii) the Net Income of any Restricted
Subsidiary shall be included (x) to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that Net
Income is at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders and (y), with respect to a Restricted Subsidiary
that is not a Wholly Owned Restricted Subsidiary, in an amount equal to the pro
rata share of such dividend or distribution (in accordance with the Equity
Interests thereof held by the Company and its Restricted Subsidiaries), (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means the total of the amounts shown on
the balance sheet of the Company and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of
the most recent fiscal quarter of the Company ending prior to the taking of any
action for the purpose of which the determination is being made and for which
financial statements are available (but in no event ending more than 135 days
prior to the taking of such action), as (i) the par or stated value of all
outstanding Capital Stock of the Company, plus (ii) paid-in capital or capital
surplus relating to such Capital Stock, plus (iii) any retained earnings or
earned surplus, less (A) any accumulated deficit (in each case excluding any
minority interest) and (B) any amounts attributable to Disqualified Stock.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of
such Board of Directors on the date of original issuance of the Securities or
(ii) was nominated for election or elected to such Board of Directors with the
approval of (A) two-thirds of the Continuing Directors who were members of such
Board at the time of such nomination or election or (B) two-thirds of those
Directors who were previously approved by Continuing Directors.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.2 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, dated as
of May 20, 1997, between the Company, and General Electric Capital Corporation,
as agent and lender, and certain other financial institutions, as lenders,
providing for up to $50 million of Indebtedness, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
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connection therewith, and in each case as amended, restated, modified, renewed,
refunded, replaced or refinanced, in whole or in part, from time to time,
whether or not with the same lenders or agents.
"Credit Facilities" means, with respect to the Company, one or
more debt facilities (including, without limitation, the Credit Agreement) or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, Production Payments, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time. Indebtedness under Credit Facilities outstanding on the date on
which the Securities are first issued and authenticated under this Indenture
(after giving effect to the use of proceeds thereof) shall be deemed to have
been incurred on such date in reliance on the exception provided by clause (b)
of the definition of Permitted Indebtedness set forth in Section 4.7 hereof.
"Debt to Cash Flow Ratio" means with respect to any Person for
any period, the ratio of the Indebtedness of such Person for such period to the
Consolidated Cash Flow of such Person for such period; provided, that, for
purposes of the foregoing, Indebtedness shall not include Indebtedness of such
Person that is required to be repaid within 12 months after the incurrence
thereof except to the extent that the aggregate principal amount of any such
Indebtedness outstanding at any time exceeds the amount permitted to be
outstanding by any credit agreement to which such Person is a party. In the
event that such Person or any of its Subsidiaries incurs, assumes, guarantees
or redeems any Indebtedness (other than revolving credit borrowings) subsequent
to the commencement of the period for which the Debt Coverage Ratio is being
calculated but prior to the date on which the calculation of the Debt Coverage
Ratio is made (the "Debt to Cash Flow Calculation Date"), then the Debt
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, as if the same had
occurred at the beginning of the applicable four-quarter reference period. In
addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by such Person or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Debt to Cash Flow Calculation Date
(including, without limitation, any acquisition to occur on the Debt to Cash
Flow Calculation Date) shall be deemed to have occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for such reference
period shall be calculated without giving effect to clause (iii) of the proviso
set forth in the definition of Consolidated Net Income, (ii) the net proceeds
of Indebtedness incurred or Disqualified Stock issued by such Person pursuant
to Section 4.7 hereof during the four-quarter reference period and on or prior
to the Debt to Cash Flow Calculation Date shall be deemed to have been received
by such Person or any of its Subsidiaries on the first day of the four-quarter
reference period and applied to its intended use on such date and (iii) the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Debt to Cash Flow Calculation Date, shall be excluded.
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"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"Designated Senior Debt" means (i) the Credit Agreement and (ii)
any other Senior Debt permitted under this Indenture the principal amount of
which is $25 million or more and that has been designated by the Company as
"Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, is convertible
or exchangeable for Indebtedness or Disqualified Stock or redeemable at the
option of the holder thereof, in whole or in part, on or prior to the date that
is 91 days after the date on which the Securities mature.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Energy Business" means (i) the operation of one or more natural
gas distribution businesses, (ii) the acquisition, exploration, development,
operation and disposition of interests in oil, gas and other hydrocarbon
properties, (iii) the gathering, purchasing, marketing, treating, processing,
storage, selling and transporting of any natural oil, gas and other minerals or
hydrocarbon products, (iv) any business related to any business or activity
described in clause (i) or clause (iii) of this definition, including, without
limitation, (a) the production of electricity or other sources of power
utilizing oil, gas or other hydrocarbon products and (b) providing services in
support of or incidental to any business or activity described in clause (i) or
clause (ii) of this definition and (v) any activity that is ancillary to or
necessary to appropriate for the activities described in clauses (i) through
(iv) of this definition.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"ESC" means Eastern Systems Corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such
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Person for such period. In the event that the Company or any of its Restricted
Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness (other
than revolving credit borrowings) or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation
Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee or redemption of
Indebtedness, or such issuance or redemption of preferred stock, as if the same
had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of making the computation referred to above,
Consolidated Cash Flow and Fixed Charges shall be calculated on a pro forma
basis, in the manner specified below, with respect to the following events: (i)
acquisitions that have been made by such Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
(including, without limitation, any acquisition to occur on the Calculation
Date) shall be deemed to have occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period shall be
calculated (a) without giving effect to clause (iii) of the proviso set forth
in the definition of Consolidated Net Income and (b) giving effect to pro forma
adjustments relating to such acquisition that would generally be permitted
under applicable accounting standards with respect to pro forma financial
statements, (ii) the net proceeds of Indebtedness incurred or Disqualified
Stock issued by such Person pursuant to the first paragraph of Section 4.7
hereof during the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date shall be deemed to have been
received by such Person or any of its Restricted Subsidiaries on the first day
of the four-quarter reference period and applied to its intended use on such
date, (iii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded and (iv) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall
be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges shall not be obligations of the referent Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries (excluding the interest expense at
Mountaineer) for such period, whether paid or accrued (including, without
limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Interest Rate
Hedging Agreements), (ii) the consolidated interest expense of such Person and
its Restricted Subsidiaries that was capitalized during such period, (iii) any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or any of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or any of its Restricted Subsidiaries (whether or not such
guarantee or Lien is called upon) and (iv)
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the product of (a) all cash dividend payments (and non-cash dividend payments
in the case of a Person that is a Restricted Subsidiary) on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, times (b)
a fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession as of the date hereof.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such
Government Security or a specific payment of principal of or interest on any
such Government Security held by such custodian for the account of the holder
of such depository receipt; provided, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Security or the specific payment of principal of
or interest on the Government Security evidenced by such depository receipt.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantor Senior Indebtedness" means any Indebtedness of a
Subsidiary Guarantor permitted to be incurred under the terms of this
Indenture, unless the Instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Subsidiary Guarantee of such Subsidiary Guarantor, including
interest accruing subsequent to the filing of, or which would have accrued but
for the filing of, a petition for bankruptcy, whether or not such interest is
an allowable claim in such bankruptcy proceeding. Notwithstanding anything to
the contrary in the foregoing, Guarantor Senior Indebtedness will not include
(1) any liability for federal, state, local or other taxes owed or owing by any
Subsidiary Guarantor, (2) any obligation of a Subsidiary Guarantor to the
Company, (3) any accounts payable or trade liabilities of a Subsidiary
Guarantor arising in the ordinary course of business (including instruments
evidencing such liabilities), (4) any Indebtedness of a Subsidiary Guarantor
that is incurred in violation of this Indenture, (5) Indebtedness of a
Subsidiary Guarantor which, when
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incurred and without respect to any election under Section 1111(b) of Title 11,
United States Code, is without recourse to such Subsidiary Guarantor, (6) any
Indebtedness, guarantee or obligation of a Subsidiary Guarantor which is
subordinate or junior to any other Indebtedness, guarantee or obligation of
such Subsidiary Guarantor, (7) Indebtedness evidenced by a Subsidiary Guarantee
and (8) Capital Stock of a Subsidiary Guarantor.
"Holder" means a Person in whose name a Security is registered on
the Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (a) any indebtedness of such Person, whether or not contingent,
(i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) evidenced by letters of credit (or reimbursement
agreements in respect thereof) or banker's acceptances, (iv) representing
Capital Lease Obligations, (v) representing the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, (vi) representing any obligations in respect
of Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts, and (vii)
in respect of any Production Payment, (b) all indebtedness of others secured by
a Lien on any asset of such Person (whether or not such indebtedness is assumed
by such Person), (c) obligations of such Person in respect of production
imbalances, (d) Attributable Debt of such Person and (e) to the extent not
otherwise included in the foregoing, the guarantee by such Person of any
indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means Chase Securities Inc. and Prudential
Securities Incorporated.
"Interest Rate Hedging Agreements" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees of Indebtedness or other obligations, but
excluding trade credit and other ordinary course advances customarily made in
the Energy Business), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided that the following shall not constitute
Investments: (i) an acquisition of assets, Equity Interests or other
securities by the Company for consideration consisting of common equity
securities of the Company, (ii) Interest Rate Hedging Agreements entered into
in accordance with the limitations set forth in clause (g) of the definition of
"Permitted Indebtedness"
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set forth in Section 4.7 hereof and (iii) Oil and Gas Hedging Contracts entered
into in accordance with the limitations set forth in clause (h) of the
definition of "Permitted Indebtedness" set forth in Section 4.7 hereof. If
such Person or any Restricted Subsidiary of such Person sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of such
Person such that, after giving effect to any such sale or disposition, such
entity is no longer a Subsidiary of such Person, such Person shall be deemed to
have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Subsidiary not sold or
disposed of.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the City of Denver or at a place
of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction other than a precautionary financing statement respecting a lease
not intended as a security agreement and other than a financing statement
relating to a sale of accounts receivable).
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions)
or (b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries and (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related provision for taxes
on such extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, but
excluding cash amounts placed in escrow, until such amounts are released to the
Company), net of the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees and expenses,
and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the
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repayment of Indebtedness (other than Indebtedness under any Credit Facility)
secured by a Lien on the asset or assets that were the subject of such Asset
Sale and any reserve for adjustment in respect of the sale price of such asset
or assets established in accordance with GAAP and any reserve established for
future liabilities.
"Non-Recourse Debt" means Indebtedness as to which (i) neither
the Company nor any Restricted Subsidiary is directly or indirectly liable
pursuant to the terms of such Indebtedness and (ii) no default with respect to
such Indebtedness 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.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Securities by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, the Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on behalf of
the Company, by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.5 hereof.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof. The counsel may be an employee of or counsel to the Company or
the Trustee.
"Pari Passu Debt" means (a) with respect to the Securities,
Indebtedness which ranks pari passu in right of payment to the Securities and
(b) with respect to any Subsidiary Guarantee, Indebtedness which ranks pari
passu in right of payment to such Subsidiary Guarantee.
"Permitted Indebtedness" has the meaning ascribed to it in
Section 4.7 hereof.
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"Permitted Investments" of a Person means (a) any Investment in
such Person or in a Wholly Owned Restricted Subsidiary of such Person; (b) any
Investment in Cash Equivalents or securities issued or directly and fully
guaranteed as to full and timely payment or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition; (c) any Investment by such
Person or any Restricted Subsidiary of such Person in a Person if, as a result
of such Investment and any related transactions that at the time of such
Investment are contractually mandated to occur, (i) such Person becomes a
Wholly Owned Restricted Subsidiary of such Person or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys all
or substantially all of its assets to, or is liquidated into, such Person or a
Wholly Owned Restricted Subsidiary of such Person; (d) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with Section 4.9 hereof; (e) Investments by
the Company or any Wholly Owned Restricted Subsidiary in any Person which is a
Wholly Owned Restricted Subsidiary; (f) Investments in the Company by any
Wholly Owned Restricted Subsidiary; (g) Investments in any Person the
consideration for which consists of Equity Interests in the Company (other than
Disqualified Stock); (h) other Investments in any Person or Persons having an
aggregate fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value (as determined in good
faith by the Board of Directors of the Company, which determination shall be
evidenced by a resolution of such Board)), when taken together with all other
Investments made by the Company and its Restricted Subsidiaries pursuant to
this clause (h) that are at the time outstanding not to exceed 5% of Total
Assets at the time such Investment is made; (i) any Investment acquired by the
Company in exchange for Equity Interests in the Company (other than
Disqualified Stock); (j) shares of Capital Stock received in connection with
any good faith settlement of a bankruptcy proceeding involving a trade
creditor; (k) entry into operating agreements, joint ventures, partnership
agreements, working interests, royalty interests, mineral leases, processing
agreements, farm-in agreements, farm-out agreements, contracts for the sale,
transportation or exchange of oil and natural gas, unitization agreements,
pooling arrangements, area of mutual interest agreements, joint development
agreements, concession, license or permit agreements relating to exploration
and development of oil and gas properties, production sharing agreements or
other similar or customary agreements, transactions, properties, interests or
arrangements, and Investments and expenditures in connection therewith or
pursuant thereto, in each case made or entered into the ordinary course of the
Energy Business, excluding, however, Investments in corporations other than any
Investment otherwise permitted by this definition; (l) stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments; (m) the acceptance of notes payable from employees
of the Company or any of its Subsidiaries as payment for the purchase of
Capital Stock of the Company or any of its Subsidiaries by such employees
provided that any such note payable is secured by a pledge of the shares of
Capital Stock of a Subsidiary purchased therewith; (n) endorsements of
negotiable instruments and documents in the ordinary course of business; and
(o) any Investments outstanding on the date hereof (and any reinvestment of the
proceeds thereof in any similar investment).
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"Permitted Liens" means (i) Liens securing Indebtedness of a
Restricted Subsidiary or Senior Debt that is outstanding on the date of
issuance of the Securities (after giving effect to the application of the
proceeds therefrom), Liens securing Senior Debt that is permitted by the terms
of this Indenture to be incurred and Liens securing Permitted Refinancing Debt
relating to Indebtedness or Senior Debt referred to in this clause (i)
(provided that, with respect to Permitted Refinancing Debt, such Liens extend
to or cover only the property or assets securing the Indebtedness or Senior
Debt being refinanced); (ii) Liens in favor of the Company; (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company, Liens upon any property of any Person existing at
the time such Person is merged or consolidated with the Company or any
Subsidiary and Liens on property or assets of a Subsidiary existing at the time
it became a Subsidiary, provided, that in each case such Lien has not been
created in contemplation of such acquisition, merger, consolidation or
transfer, and provided further that in each such case no such Lien shall extend
to or cover any property of the Company or any Subsidiary other than the
property being acquired (through purchase, merger, consolidation or otherwise)
and improvements thereon; (iv) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance or other kinds of social security, old age pension or public
liability obligations or to secure the payment or performance of bids, tenders,
statutory or regulatory obligations, surety, stay or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business (including lessee or operator obligations under statutes, governmental
regulations or instruments related to the ownership, exploration and production
of oil, gas and minerals on state or federal lands or waters), (v) Liens
existing on the date of this Indenture (after giving effect to the application
of proceeds therefrom), (vi) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent, that do not materially adversely
affect the operations of the company or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded,
provided, that any reserve or other appropriate provision as shall be required
in conformity with GAAP shall have been made therefor; (vii) statutory liens of
landlords, mechanics, suppliers, vendors, warehousemen, carriers or other like
Liens arising in the ordinary course of business; (viii) judgment Liens not
giving rise to an Event of Default so long as any appropriate legal proceeding
that may have been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such proceeding may be
initiated shall not have expired; (ix) Liens on, or related to, properties or
assets to secure all or part of the costs incurred in the ordinary course of
the Energy Business for the exploration, drilling, development or operation
thereof; (x) Liens in pipelines or pipeline facilities that arise under
operation of law; (xi) Liens arising under operating agreements, joint venture
agreements, joint development agreements, partnership agreements, oil and gas
leases, farm-out agreements, division orders, contracts for the sale,
transportation or exchange of oil or natural gas, unitization and pooling
declarations and agreements, area of mutual interest agreements and other
agreements that are customary in the Energy Business; (xii) Liens reserved in
oil and gas mineral leases for bonus and rental payments and for compliance
with the terms of such leases; (xiii) Liens securing any Interest Rate Hedging
Agreement permitted to be entered into pursuant to Section 4.7 hereof; (xiv)
Liens securing any Oil and Gas Hedging Contract permitted to be entered into
pursuant to Section 4.7 hereof; (xv) survey exceptions, encumbrances, easements
or reservations of, or rights of others for, rights of way, zoning or other
restrictions as to the use of real properties, and minor defects in title
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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 such properties or materially impair use for the purposes of which such
properties are held by the Company or any Subsidiaries; (xvi) judgment and
attachment Liens not giving rise to an Event of Default or Liens created by or
existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and for which adequate
reserves have been made; (xvii) Liens in favor of collecting or payor banks
having a right of setoff, revocation, refund or chargeback with respect to
money or instruments of the Company or any Subsidiary on deposit with or in
possession of such bank; (xviii) purchase money security interests granted in
connection with the acquisition of fixed assets in the ordinary course of
business and consistent with past practices, provided, that (A) such Liens
attach only to the property so acquired with the purchase money indebtedness
secured thereby and (B) such Liens secure only Indebtedness that is not in
excess of 100% of the purchase price of such fixed assets; (xix) Liens to
secure Dollar-Denominated Production Payments; and Volumetric Production
Payments; (xx) Liens securing the Securities and (xxi) Liens not otherwise
permitted by clauses (i) through (xx) that are incurred in the ordinary course
of business of the Company or any Subsidiary of the Company with respect to
obligations that do not exceed $5 million at any one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Indebtedness incurred under a Credit
Facility) of the Company or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Permitted Refinancing Debt (or, if such
Indebtedness is issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom) does not exceed the principal
amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded plus the amount of reasonable expenses incurred in connection
therewith (or if the Indebtedness being renewed, extended, refinanced, refunded
or repurchased was issued at a price less than the principal amount thereof,
then not in excess of the amount of liability in respect thereof determined in
accordance with GAAP); (ii) such Permitted Refinancing Debt has a final
maturity date on or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Securities or the Subsidiary Guarantees, if any, as the case may be, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the
Securities or the Subsidiary Guarantees, if any, as the case may be, on terms
at least as favorable taken as a whole to the Holders of the Securities or the
Subsidiary Guarantees, if any, as the case may be, as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Production Payments" means Dollar-Denominated Production
Payments and Volumetric Production Payments, collectively.
"QIB" means any "qualified institutional buyer" (as defined under
the Securities Act).
"Registered Exchange Offer" shall have the meaning set forth in
the Registration Rights Agreement.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated May 23, 1997, among the Company, Chase
Securities Inc. and Prudential Securities Incorporated.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means any direct or indirect Subsidiary
of the Company that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the Trustee or the Registrar, as
custodian with respect to the Securities in global form, or any successor
entity thereto or any entity acting as custodian with respect to Securities in
global form.
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"Senior Debt" means (i) Indebtedness of the Company or any
Subsidiary of the Company under or in respect of any Credit Facility, whether
for principal, interest (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law, whether or
not the claim for such interest is allowed as a claim in such proceeding),
reimbursement obligations, fees, commissions, expenses, indemnities or other
amounts, and (ii) any other Indebtedness permitted under the terms hereof,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the
Securities. Notwithstanding anything to the contrary in the foregoing
sentence, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates, (y) any trade payables
or (z) any Indebtedness that is incurred in violation hereof (other than
Indebtedness under (i) any Credit Agreement or (ii) any other Credit Facility
that is incurred on the basis of a representation by the Company to the
applicable lenders that it is permitted to incur such Indebtedness under this
Indenture).
"Senior Subordinated Indebtedness" means the Securities and any
other Indebtedness of the Company or a Subsidiary Guarantor, if any, that (i)
specifically provides that such Indebtedness is to rank pari passu with the
Securities or is otherwise entitled "Senior Subordinated" Indebtedness and (ii)
is not expressly subordinated by its terms in right of payment to any
Indebtedness of the Company that is not Senior Debt.
"Shelf Registration Statement" has the meaning ascribed to such
term in the Registration Rights Agreement.
"Subordinated Indebtedness" means any Indebtedness of the Company
or any Restricted Subsidiary (whether outstanding on the date of the issuance
of the Securities or thereafter incurred) which is subordinate or junior in
right of payment to the Securities pursuant to a written agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock, entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the obligations of
the Company under this Indenture and the Securities by any Person in accordance
with the provisions of this Indenture.
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"Subsidiary Guarantor" means any Person that incurs a Subsidiary
Guarantee; provided that upon the release and discharge of such Person from its
Subsidiary Guarantee in accordance with this Indenture, such Person shall cease
to be a Subsidiary Guarantor.
"Tax Sharing Agreement" means the Tax Sharing Agreement, if any,
among the Company and its Subsidiaries, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Total Assets" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet of such Person.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
which at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of
the Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through
merger or consolidation or Investment therein) to be an Unrestricted Subsidiary
only if (a) such Subsidiary does not own any Capital Stock of, or own or hold
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (b) all the Indebtedness of such Subsidiary shall, at the date of
designation, and will at all times thereafter; consist of Non-Recourse Debt;
(c) the Company certifies that such designation was permitted by Section 4.6;
(d) such Subsidiary, either alone or in the aggregate with all other
Unrestricted Subsidiaries, does not operate, directly or indirectly, all or
substantially all of the business of the Company and its Subsidiaries; (e) such
Subsidiary does not, directly or indirectly, own any Indebtedness of or Equity
Interest in, and has no Investments in, the Company or any Restricted
Subsidiary; (f) such Subsidiary is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (1) to subscribe for additional Equity Interests or (2) to maintain
or preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results; and (g) on the date such
Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary with terms substantially less favorable to the
Company than those that might have been obtained from Persons who are not
Affiliates of the Company. Any such designation by the Board of Directors of
the
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Company shall be evidenced to the Trustee by filing with the Trustee a
resolution of the Board of Directors of the Company giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred as of such date. The Board of Directors of the Company
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, that immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof and the Company could incur at least $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) pursuant to Section 4.7 on a
pro forma basis taking into account such designation.
"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, with respect to any Person, securities of
any class or classes of Capital Stock in such Person normally entitling the
holders thereof to vote in the election of members of the Board of Directors or
other governing body of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person, all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned, directly or indirectly, by such Person or by one or
more Wholly Owned Restricted Subsidiaries of such Person.
Section 1.2. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" . . . . . . . . . . . . . . . 4.12
"Agent Members" . . . . . . . . . . . . . . . . . . . 2.1
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . 3.9
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . 6.1
"Change of Control Offer" . . . . . . . . . . . . . . 4.11
"Change of Control Payment" . . . . . . . . . . . . . 4.11
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"Change of Control Payment Date" . . . . . . . . . . . 4.11
"Common Stock" . . . . . . . . . . . . . . . . . . . . 3.7
"Covenant Defeasance" . . . . . . . . . . . . . . . . 8.3
"Custodian" . . . . . . . . . . . . . . . . . . . . . 6.1
"Definitive Securities" . . . . . . . . . . . . . . . 2.1
"Eastern American" . . . . . . . . . . . . . . . . . . 4.12
"Energy Business Assets" . . . . . . . . . . . . . . . 4.9
"Event of Default" . . . . . . . . . . . . . . . . . . 6.1
"Excess Proceeds" . . . . . . . . . . . . . . . . . . 4.9
"Global Security" . . . . . . . . . . . . . . . . . . 2.1
"Guaranteed Debt" . . . . . . . . . . . . . . . . . . 4.14
"incur" . . . . . . . . . . . . . . . . . . . . . . . 4.7
"Legal Defeasance" . . . . . . . . . . . . . . . . . . 8.2
"Mountaineer" . . . . . . . . . . . . . . . . . . . . 4.7
"Non-Global Purchasers" . . . . . . . . . . . . . . . 2.1
"non-payment default" . . . . . . . . . . . . . . . . 10.4
"Notice of Default" . . . . . . . . . . . . . . . . . 6.1
"Offer Amount" . . . . . . . . . . . . . . . . . . . . 3.9
"Offer Period" . . . . . . . . . . . . . . . . . . . . 3.9
"Other Consideration" . . . . . . . . . . . . . . . . 4.9
"Paying Agent" . . . . . . . . . . . . . . . . . . . . 2.3
"Payment Blockage Notice" . . . . . . . . . . . . . . 10.4
"Payment Default" . . . . . . . . . . . . . . . . . . 6.1
"Purchase Date" . . . . . . . . . . . . . . . . . . . 3.9
"Register" . . . . . . . . . . . . . . . . . . . . . . 2.3
"Registrar" . . . . . . . . . . . . . . . . . . . . . 2.3
"Restricted Payments" . . . . . . . . . . . . . . . . 4.6
"Restricted Securities Legend" . . . . . . . . . . . . 2.6
"Rule 144A" . . . . . . . . . . . . . . . . . . . . . 2.1(a)
"Surviving Entity" . . . . . . . . . . . . . . . . . . 5.1
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 to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
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"obligor" with respect to the Securities means the Company and
with respect to the Subsidiary Guarantees, if any, means the Subsidiary
Guarantors and any successor obligor upon the Securities and the Subsidiary
Guarantees, respectively.
All other terms used in this indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by rule enacted by
the Commission under the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating. The Initial Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. Any Exchange Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit B, which is incorporated in and
expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Company). Each
Security shall be dated the date of its authentication. The terms of the
Securities set forth in Exhibit A and B are part of the terms of this
Indenture.
(a) Global Securities. The Initial Notes are being offered
and sold by the Company pursuant to the Purchase Agreement.
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Initial Notes offered and sold to QIBs in accordance with Rule
144A under the Securities Act ("Rule 144A") as provided in the Purchase
Agreement, shall be issued initially in the form of a single, permanent Global
Security in definitive, fully registered form without interest coupons with the
legend called for by Exhibit A hereto (the "Global Security"), which shall be
deposited on behalf of the Initial Purchasers of the Initial Securities
represented thereby with the Trustee, as Securities Custodian for the
Depository, and registered in the name of Cede & Co., as nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Security
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as Securities Custodian, and the Depository or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to Global Securities deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (ii)
shall be held by the Trustee as custodian for the Depository. After the
issuance of Exchange Notes under a Registered Exchange Offer, the Trustee shall
have no duty to hold any Global Security as custodian for the Depository or any
other Security registered in the name of the Depository or a nominee of the
Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as the custodian of
the Depository or under such 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 impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
a holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as otherwise provided
herein, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Securities. Purchasers
of Initial Securities who are not QIBs (referred to herein as the "Non-Global
Purchasers") will receive certificated Initial Securities bearing the
Restricted Securities Legend ("Definitive Securities"); provided, however, that
upon transfer of such Restricted Certificated Securities to a QIB, such
Restricted Certificated Securities will, unless the relevant Global Security
has previously been exchanged, be exchanged for an interest in a Global
Security pursuant to the provisions of Section 2.6 hereof. Definitive
Securities will include the Restricted Securities Legend unless removed in
accordance with this Section 2.1(c) or Section 2.6(g) hereof.
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After a transfer of any Initial Notes during the period of the
effectiveness of, and pursuant to, a Shelf Registration Statement with respect
to the Initial Notes, all requirements pertaining to legends on such Initial
Notes will cease to apply, the requirements requiring that any such Initial
Notes issued to certain Holders be issued in global form will cease to apply,
and certificated Initial Notes without legends will be made available to the
Holders of such Initial Notes. Upon the consummation of a Registered Exchange
Offer with respect to the Initial Notes pursuant to which Holders of Initial
Notes are issued Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will cease to apply and certificated
Initial Notes with the Restricted Notes Legend will be available to Holders of
such Initial Notes that do not exchange their Initial Notes, and Exchange Notes
in certificated form will be available to Holders that exchange such Initial
Notes in such Registered Exchange Offer.
Section 2.2. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
(1) Initial Notes for original issue in an aggregate principal amount of $200.0
million, and (2) Exchange Notes for issue only in a Registered Exchange Offer,
pursuant to the Registration Rights Agreement, for Initial Notes for a like
principal amount of Initial Notes exchanged pursuant thereto, in each case upon
a written order of the Company signed by one Officer. Such order shall specify
the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and whether the Securities
are to be Initial Notes or Exchange Notes. The aggregate principal amount of
Securities outstanding at any time may not exceed $200.0 million.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Securities. Any such appointment shall be
evidenced by an instrument in writing signed by a Trust Officer, a copy of
which instrument shall be promptly furnished to the Company. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or
agent for service of notices and demands.
Section 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying
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Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange (the "Register"). The ownership of Securities shall be
proved by such Register. The Company may have one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. The Company or
any of its Wholly Owned Restricted Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to
act as Depository with respect to the Global Securities.
Section 2.4. Paying Agent To Hold Money in Trust. On or prior
to 11:00 a.m. on each due date of the principal and interest on any Security,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall, on or immediately prior to each due date of the principal and interest
on any Security, segregate the money held by it as Paying Agent and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed
by the Paying Agent. Upon complying with this Section, the Paying Agent shall
have no further liability for the money delivered to the Trustee.
Any money deposited with the Trustee or any Paying Agent in trust
for the payment of principal and interest on any Security and remaining
unclaimed for two years after such principal and interest has become due and
payable shall be paid to the Company at its request; and the Holder of such
Security shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease.
Section 2.5. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee
is not the Registrar, the Company shall furnish to the Trustee, in writing at
least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
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Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of principal or interest on any
Security and remaining unclaimed for two years after such principal and
interest has become due and payable shall be paid to the Company at its
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.
Section 2.6. Transfer and Exchange. (a) Transfer and Exchange
of Definitive Securities. When Definitive Securities are presented to the
Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form and substance reasonably satisfactory to
the Company and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or pursuant to
clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from such
Holder to that effect (in substantially the form set forth on the
reverse of the Security); or
(B) if such Transfer Restricted Securities are being
transferred to the Company or to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act, a
certification to that effect (in substantially the form set forth
on the reverse of the Security); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; or (x) to an institutional "accredited investor" within the
meaning of Rules 501(a)(1), (2), (3) or (7) under the Securities
Act that is acquiring the
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security for its own account, or for the account of such an
institutional accredited investor, with respect to which it
exercises sole discretion, in each case in a minimum principal
amount of the Securities of $250,000 for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act; or (y) in
reliance on another exemption from the registration requirements
of the Securities Act: (i) a certification to that effect (in
substantially the form set forth on the reverse of the Security),
(ii) if the Company or Registrar so requests, an Opinion of
Counsel reasonably acceptable to the Company and to the Registrar
to the effect that such transfer is in compliance with the
Securities Act and (iii) in the case of clause (x), a signed
letter substantially in the form of Exhibit C hereto.
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form and substance satisfactory to the Trustee and
the Company, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, certification, substantially in the form set forth on the
reverse of the Security, that such Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the Securities
Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Trustee to make,
or to direct the Securities Custodian to make, an adjustment on its
books and records with respect to such Global Security to reflect an
increase in the aggregate principal amount of the Securities represented
by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officer's Certificate, a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
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(i) Any person having a beneficial interest in a Global
Security that is being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to clause
(A),(B) or (C) below may upon request, and if accompanied by the
information specified below, exchange such beneficial interest for a
Definitive Security of the same aggregate principal amount. Upon
receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depository from the Depository or
its nominee on behalf of any Person having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depository or
the Person designated by the Depository as having such a beneficial
interest in a Transfer Restricted Security only, the following
additional information and documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being the owner of a
beneficial interest in a Global Security, a certification from
such Person to that effect (in substantially the form set forth
on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certification to that effect (in substantially the form set forth
on the reverse of the Security); or
(C) if such beneficial interest is being transferred (w)
pursuant to an exemption from registration in accordance with
Rule 144 or Regulation S under the Securities Act; or (x) to an
institutional "accredited investor" within the meaning of Rules
501(a)(1), (2), (3) and (7) under the Securities Act that is
acquiring the security for its own account, or for the account of
such an institutional accredited investor, with respect to which
it exercises sole discretion, in each case in a minimum principal
amount of the Securities of $250,000 for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities; or (y) in reliance
on another exemption from the registration requirements of the
Securities Act: (i) a certification to that effect from the
transferee or transferor (in substantially the form set forth on
the reverse of the Security), (ii) if the Company or Registrar so
requests, an Opinion of Counsel from the transferee or transferor
reasonably acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the Securities
Act, and (iii) in the case of clause (x), a signed letter
substantially in the form of Exhibit C hereto,
then the Trustee or the Securities Custodian, at the direction of the
Trustee, will cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian,
the aggregate principal amount of the Global Security to be reduced on
its books and records and, following such reduction, the Company will
execute and the Trustee will authenticate and make available for
delivery to the transferee a Definitive Security.
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(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Definitive Securities available for delivery to the
persons in whose names such Securities are so registered in accordance
with the instructions of the Depository.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Securities in Absence of
Depository. If at any time:
(i) the Depository for the Securities notifies the Company
that the Depository is unwilling or unable to continue as Depository for
the Global Securities and a successor Depository for the Global
Securities is not appointed by the Company within 90 days after delivery
of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Securities
under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate requesting the authentication and delivery of Definitive Securities
to the Persons designated by the Company, will authenticate and make available
for delivery Definitive Securities, in an aggregate principal amount equal to
the principal amount of Global Securities, in exchange for such Global
Securities.
(g) Legend.
(i) Except as permitted by the following paragraph (ii), each
Security certificate evidencing the Global Securities and the Definitive
Securities (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend (the "Restricted Securities
Legend") in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.
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THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON
ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT
HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, IN A TRANSACTION COMPLYING WITH THE
REQUIREMENTS OF RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULES 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY
OF THE FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
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(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legend set forth above
and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(B) any such Transfer Restricted Security represented by
a Global Security shall not be subject to the provisions set
forth in clause (i) of this Section 2.6(g) (such sales or
transfers being subject only to the provisions of Section 2.6(c)
hereof); provided, however, that with respect to any request for
an exchange of a Transfer Restricted Security that is represented
by a Global Security for a Definitive Security that does not bear
a legend, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such
certification to be substantially in the form set forth on the
reverse of the Security).
(h) Cancellation and/or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to the Depository for cancellation or
retained and canceled by the Trustee. At any time prior to such cancellation,
if any beneficial interest in a Global Security is exchanged for Definitive
Securities, redeemed, repurchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) or the Securities Custodian
with respect to such Global Security, by the Trustee or the Securities
Custodian, to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article 3,
except the unredeemed portion of any Definitive Security being
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redeemed in part, or (b) any Security for a period beginning 15 Business
Days before the mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, each of the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar may deem and treat the person
in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever, whether
or not such Security is overdue, and none of the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar shall be affected
by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and
shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(j) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or
with respect to such Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities shall
be given or made only to or upon the order of the registered Holders (which
shall be the Depository or its nominee in the case of a Global Security). The
rights of beneficial owners in any Global Security in global form shall be
exercised only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may conclusively rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including, without limitation,
any transfers between or among Depository participants, members or beneficial
owners in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
Section 2.7. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security
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if the requirements of Article 8 of the Uniform Commercial Code and any other
applicable law are met, and if the Holder (i) satisfies the Company and the
Trustee, within a reasonable time after such Holder has notice thereof, with
respect to such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (ii) so requests the
Company or the Trustee prior to the Security being acquired by a bonafide
purchaser and (iii) satisfies any other reasonable requirements of the Company
and the Trustee. Such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss that any of
them may suffer if a Security is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security (including amounts
necessary to pay taxes or other governmental charges associated with such
replacement).
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.7 shall (to the extent lawful)
be exclusive and preclude all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.8. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bonafide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may
be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
Section 2.9. Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities and make them available for delivery in exchange for temporary
Securities.
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Section 2.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and deliver canceled Securities to the Company. The Company may
not issue new Securities to replace Securities it has delivered to the Trustee
for cancellation. The Trustee shall not authenticate Securities in place of
canceled Securities other than pursuant to the terms of this Indenture.
Section 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who
are Holders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each Holder a
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
Section 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to the
optional redemption provisions of Section 3.7 hereof, then it shall furnish to
the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the paragraph of the
Securities and/or Section of this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of Securities
to be redeemed (with CUSIP numbers) and (iv) the redemption price.
Section 3.2. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any
time, selection of Securities for redemption shall be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or, if such Securities are not
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so listed, on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and appropriate; provided that no Security of $1,000 or less shall be
redeemed in part. In the event of partial redemption by lot, the particular
Securities to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
Securities and portions of Securities selected shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Securities of a Holder are
to be redeemed, the entire outstanding amount of Securities held by such
Holder, even if not a multiple of $1,000, shall be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof shall be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after the redemption date, unless the Company defaults in payment of the
redemption price, interest ceases to accrue on Securities or portions of them
called for redemption. Except as provided in this Section 3.2, provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
The provisions of the two preceding paragraphs of this Section
3.2 shall not apply with respect to any redemption affecting only a Global
Security, whether such Global Security is to be redeemed in whole or in part.
In case of any such redemption in part, the unredeemed portion of the principal
amount of the Global Security shall be in an authorized denomination.
Section 3.3. Notice of Redemption.
Subject to the provisions of Section 3.9 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
of Securities to be redeemed at such Holder's registered address, provided,
however, that the Company shall provide notice to the Trustee pursuant to
Section 3.1 hereof at least five days prior to the mailing of the notice
pursuant to this Section 3.3.
The notice shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Security;
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(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Securities called for redemption cease
to accrue on and after the redemption date;
(g) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are
being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
If any of the Securities to be redeemed is in the form of a
Global Security, then such notice shall be modified in form but not substance
to the extent appropriate to accord with the procedures of the Depository
applicable to redemptions.
At the Company's request and expense, the Trustee shall give the
notice of redemption in the Company's name; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Securities called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may not
be conditional. If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Security was registered at the close of
business on such record date. If any Security called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case
at the rate provided in the Securities and in Section 4.1 hereof.
Section 3.5. Deposit of Redemption Price.
On or prior to 11:00 a.m. on the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued
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interest on all Securities to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary
to pay the redemption price of and accrued interest on, all Securities to be
redeemed.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and, upon the receipt of a written authentication order of
the Company signed by two Officers of the Company, the Trustee shall
authenticate for the Holder at the expense of the Company a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
Section 3.7. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.7, the
Company shall not have the option to redeem the Securities pursuant to this
Section 3.7 prior to May 15, 2002. From and after May 15, 2002, the Company
shall have the option to redeem the Securities, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on May 15 of each of
the years indicated below:
Percentage of
Year Principal Amount
---- ----------------
2002 . . . . . . . . . . . . . . . . . . . . . 104.750%
2003 . . . . . . . . . . . . . . . . . . . . . 103.167%
2004 . . . . . . . . . . . . . . . . . . . . . 101.583%
2005 and thereafter . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.7, at any time prior to May 15, 2000, the Company may, at its option,
on any one or more occasions, redeem up to 33 1/3% of the original aggregate
principal amount of the Securities at a redemption price equal to 109.500% of
the principal amount thereof, plus accrued and unpaid interest, if any, thereon
to the redemption date with all or a portion of the net proceeds of public
sales of common stock of the Company, par value $.01 (the "Common Stock");
provided that at least 66 2/3% of the original aggregate principal amount of
the Securities remains outstanding immediately after the occurrence of such
redemption; and provided, further, that such redemption shall occur within 60
days of the date of the closing of the related sale of Common Stock of the
Company.
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(c) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
(d) In addition to the foregoing, (i) upon a Change of Control
each Holder will have the right to require the Company to repurchase all or
part of such Holder's Securities as described in Section 4.11 and (ii) as
described in Sections 3.9 and 4.9, the Company may from time to time make Asset
Sales Offers.
Section 3.8. Mandatory Redemption.
Except as set forth under Sections 4.9 and 4.11 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Securities.
Section 3.9. Offer to Purchase By Application of Excess
Proceeds.
In the event that, pursuant to Section 4.9 hereof, the Company
shall be required to commence an offer to all Holders of Securities and, to the
extent required by the terms thereof, to all holders or lenders of other Pari
Passu Indebtedness, to purchase Securities and any such Pari Passu Indebtedness
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Securities
required to be purchased pursuant to Section 4.9 hereof, giving effect to any
related offer for Pari Passu Indebtedness pursuant to Section 4.9 (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Securities
tendered in response to the Asset Sale Offer. Payment for any Securities so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Security is registered at the close
of business on such record date, and no additional interest shall be payable to
Holders who tender Securities pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.9 hereof;
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(b) the length of the Offer Period, the Offer Amount, the
purchase price and the Purchase Date;
(c) that any Security not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Security accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Security purchased
pursuant to an Asset Sale Offer may only elect to have all of such
Security purchased and may not elect to have only a portion of such
Security purchased;
(f) that Holders electing to have a Security purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Security completed, or transfer by book-entry
transfer, to the Company, a Depository, if appointed by the Company, or
a Paying Agent at the address specified in the notice at least three
Business Days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Security purchased;
(h) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Securities to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof,
shall be purchased) in the manner provided in Section 4.9; and
(i) that Holders whose Securities were purchased only in part
shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered (or transferred by
book-entry transfer).
If any of the Securities subject to an Asset Sale Offer is in the
form of a Global Security, then such notice may be modified in form but not
substance to the extent appropriate to accord with the procedures of the
Depository applicable to repurchases.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Securities or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered,
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all Securities tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Securities or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.9. The
Company, the Depository or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Securities tendered by such Holder and accepted by the Company for purchase,
and the Company shall promptly issue a new Security, and the Trustee, upon
receipt of a written authentication order of the Company signed by two Officers
of the Company shall authenticate and mail or deliver such new Security to such
Holder, in a principal amount equal to any unpurchased portion of the Security
surrendered. Any Security not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Securities.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Securities on the dates and in the manner
provided in the Securities. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 12:00 noon Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all such amounts then due.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to 1% per annum in excess of the then applicable interest rate on the
Securities to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to
the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where principal, premium,
if any, and interest on the Securities will be paid and where Securities may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the
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location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the following office of the Trustee
as one such office or agency of the Company in accordance with Section 2.3: 101
Barclay Street, Floor 21 West, New York, New York 10286.
Section 4.3. SEC Reports.
Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, to the extent permitted by the Exchange Act, the Company shall file with
the Commission and provide, within 15 days after such filing, the Trustee and
Holders and prospective Holders (upon request) with the annual reports and the
information, documents and other reports that are specified in Sections 13 and
15(d) of the Exchange Act (but without exhibits in the case of the Holders and
prospective Holders). In the event that the Company is not permitted to file
such reports, documents and information with the Commission, the Company will
provide substantially similar information to the Trustee, the Holders and
prospective Holders (upon request) as if the Company were subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act. The Company
shall at all times comply with the other provisions of TIA Section 314(a).
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end 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 year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking
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or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest on the
Securities is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto. As of the date hereof, the Company's fiscal year ends on June 30 of
each calendar year. In the event the Company changes its fiscal year, it shall
promptly notify the Trustee in writing of such change.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
fiscal year-end financial statements delivered pursuant to Section 4.4(a) above
shall be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Company and each Subsidiary Guarantor, if any, shall,
so long as any of the Securities are outstanding, deliver to the Trustee,
within five Business Days of any Officer of such Person becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
Section 4.5. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Securities.
Section 4.6. Limitations on Restricted Payments.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Equity Interests of
the Company or any Restricted Subsidiary (including, without limitation, any
payment in connection with any merger or consolidation involving the Company)
to the direct or indirect holders of the Company's Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or a Restricted
Subsidiary and other than dividends or distributions payable to the Company or
a Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a
Restricted Subsidiary receives at least its pro rata share of such dividend or
distribution in accordance with its Equity Interests in such class or series of
securities);
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(ii) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Company or any direct or indirect parent or other Affiliate of
the Company that is not a Restricted Subsidiary of the Company; (iii) make any
principal payment on, or purchase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated to the Securities,
except at final maturity; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at the time of and
after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.7 hereof; and
(c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (2), (3) and (5) of the next succeeding
paragraph), is less than the sum of (i) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period)
from the beginning of the first fiscal quarter commencing after the date
of this Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus (ii) 100% of
the aggregate net cash proceeds received by the Company from the issue
or sale since the date of this Indenture of Equity Interests of the
Company or of debt securities of the Company that have been converted
into or exchanged for such Equity Interests (other than Equity Interests
(or convertible debt securities) sold to a Subsidiary of the Company and
other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date of this Indenture is
sold for cash or otherwise liquidated or repaid for cash, the lesser of
(A) the net proceeds of such sale, liquidation or repayment and (B) the
initial amount of such Restricted Investment.
The foregoing provisions shall not prohibit (1) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of
this Indenture; (2) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company (other than any Disqualified
Stock); provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement or other acquisition
shall be excluded from clause (c)(ii) of the preceding paragraph; (3) the
defeasance, redemption or
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repurchase of Subordinated Indebtedness with the net cash proceeds from an
incurrence of subordinated Permitted Refinancing Debt or the substantially
concurrent sale (other than to a Subsidiary of the Company) of Equity Interests
of the Company (other than Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement or other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph; (4) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Subsidiary
of the Company held by any of the Company's (or any of its Subsidiaries')
employees pursuant to any stock repurchase agreement, management equity
subscription agreement or stock option agreement in effect as of the date of
this Indenture or any similar agreement entered into after the date of this
Indenture that is consistent with past practices; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $2 million in any twelve-month period; and provided,
further, that no Default or Event of Default shall have occurred and be
continuing immediately after such transaction; (5) repurchases of Equity
Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options; (6) the
payment of the redemption price of rights issued pursuant to any shareholders'
rights plan not in excess of $0.05 per right and not in excess of $1,000,000 in
the aggregate; (7) payments made by the Company to any Subsidiary or by any
Subsidiary to the Company or another Subsidiary pursuant to the Tax Sharing
Agreement; (8) the payment of dividends with respect to shares of Capital Stock
of any Subsidiary of the Company to holders thereof who are employees or
directors of such Subsidiary in an aggregate amount not to exceed $350,000 in
any 12-month period for all such shares of Capital Stock of Subsidiaries of the
Company; and (10) Restricted Payments in an aggregate amount since the date
hereof not to exceed $10,000,000.
The amount of all Restricted Payments (other than cash) shall be
the fair market value (as determined in good faith by a resolution of the Board
of Directors set forth in an Officers' Certificate delivered to the Trustee,
which determination shall be conclusive evidence of compliance with this
provision) on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or the applicable Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. Not later than five days after the
date of making any Restricted Payment, the Company shall deliver to the Trustee
an Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.6 were computed.
In computing Consolidated Net Income for purposes of this Section
4.6, (i) the Company shall use audited financial statements for the portion of
the relevant period for which audited financial statements are available on the
date of determination and unaudited financial statements and other current
financial data based on the books and records of the Company for the remaining
portion of such period and (ii) the Company shall be permitted to rely in good
faith on the financial statements and other financial data derived from the
books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment, would on the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment shall be
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deemed to have been made in compliance with this Indenture notwithstanding any
subsequent adjustments made in good faith to the Company's financial statements
affecting Consolidated Net Income of the Company for any period.
The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Restricted
Investments by the Company and its Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated shall be deemed to be
Restricted Payments at the time of such designation and shall reduce the amount
available for Restricted Payments under clause (c) of the first paragraph of
this covenant. All such outstanding Investments shall be deemed to constitute
Investments in an amount equal to the greater of the fair market value or the
book value of such Investments at the time of such designation. Such
designation shall only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
Section 4.7. Limitations on Incurrence of Indebtedness and
Issuance of Disqualified Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Debt), neither the Company nor any Subsidiary Guarantor, if any, shall
issue any Disqualified Stock and the Company shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued
would have been at least 2.5 to 1, determined on a pro forma basis as
set forth in the definition of Fixed Charge Coverage Ratio; and
(ii) no Default or Event of Default shall have occurred and
be continuing at the time such additional Indebtedness is incurred or
such Disqualified Stock is issued or would occur as a consequence of the
incurrence of the additional Indebtedness or the issuance of the
Disqualified Stock.
Notwithstanding the foregoing, this Indenture shall not prohibit
any of the following (collectively, "Permitted Indebtedness"): (a) the
Indebtedness evidenced by the Securities; (b) the incurrence by the Company and
any Subsidiary Guarantor, if any, of Indebtedness pursuant to Credit
Facilities, so long as the aggregate principal amount of all Indebtedness
outstanding under all Credit Facilities does not, at any one time, exceed the
greater of (i) $50 million or (ii) 10% of Total Assets determined as of the
incurrence of the Indebtedness; (c) the guarantee by any Restricted Subsidiary
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of any Indebtedness that is permitted by this Indenture to be incurred by the
Company, provided that Section 4.14 is satisfied in connection with the
issuance of such guarantee; (d) all Indebtedness, Disqualified Stock and
preferred stock of the Company and its Restricted Subsidiaries in existence as
of the date of this Indenture or permitted to be incurred under any agreement
to which any Restricted Subsidiary of the Company is a party in existence on
the date of this Indenture; (e) intercompany Indebtedness between or among the
Company and any of its Wholly Owned Restricted Subsidiaries, or between or
among Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinate to the payment in full of all Obligations with respect to the
Securities and (ii)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Company or a Wholly Owned Subsidiary and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a Wholly Owned
Subsidiary shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be; (f)
Indebtedness in connection with one or more standby letters of credit,
guarantees, performance bonds or other reimbursement obligations, in each case,
issued in the ordinary course of business and not in connection with the
borrowing of money or the obtaining of advances or credit (other than advances
or credit on open account, includible in current liabilities, for goods and
services in the ordinary course of business and on terms and conditions which
are customary in the Energy Business, and other than the extension of credit
represented by such letter of credit guarantee or performance bond itself), not
to exceed, in the aggregate at any given time 5% of Total Assets; (g)
Indebtedness under Interest Rate Hedging Agreements entered into for the
purpose of limiting interest rate risks, provided that the obligations under
such agreements are related to payment obligations on Indebtedness otherwise
permitted by the terms of this covenant and that the aggregate notional
principal amount of such agreements does not exceed the principal amount of the
Indebtedness to which such agreements relate; (h) Indebtedness under Oil and
Gas Hedging Contracts, provided that such contracts were entered into in the
ordinary course of business for the purpose of limiting risks that arise in the
ordinary course of business of the Company and its Restricted Subsidiaries; (i)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness not otherwise permitted to be incurred pursuant to this paragraph,
provided that the aggregate principal amount of all Indebtedness incurred
pursuant to this clause (i), together with all Permitted Refinancing Debt
incurred pursuant to clause (j) of this paragraph in respect of Indebtedness
previously incurred pursuant to this clause (i), does not exceed, at any one
time, 5% of Total Assets; (j) Permitted Refinancing Debt incurred in exchange
for, or the net proceeds of which are used to refinance, extend, renew,
replace, defease or refund, Indebtedness that was permitted by this Indenture
to be incurred (including Indebtedness previously incurred pursuant to this
clause (j), but excluding Indebtedness under clauses (c), (e), (f), (g), (h),
(k), (l) and (m)); (k) accounts payable or other obligations of the Company or
any Restricted Subsidiary to trade creditors created or assumed by the Company
or such Restricted Subsidiary in the ordinary course of business in connection
with the obtaining of goods or services; (l) Indebtedness consisting of
obligations in respect of purchase price adjustments, guarantees or indemnities
in connection with the acquisition or disposition of assets; (m) production
imbalances that do not, at any one time outstanding, exceed 2% of the Total
Assets of the Company; (n) Indebtedness of a Subsidiary Guarantor, if any, in
respect of the Subsidiary Guarantee, if any of such Subsidiary Guarantor; and
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(o) the incurrence of Indebtedness or the issuance of Disqualified Stock by
Mountaineer Gas Company ("Mountaineer") so long as (i) the Debt to Cash Flow
Ratio for Mountaineer's most recently ended four full fiscal quarters
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock is issued would have been no more than 3 to
1, determined on a pro forma basis as set forth in the definition of Debt to
Cash Flow Ratio and (ii) no Default or Event of Default shall have occurred and
be continuing at the time such additional Indebtedness is incurred or would
occur as a consequence of the incurrence of the additional Indebtedness. ESC
may not incur any additional Indebtedness.
Section 4.8. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(x) pay dividends or make any other distributions
to the Company or any of the Restricted Subsidiaries of the Company on its
Capital Stock or (y) pay any indebtedness owed to the Company or any Restricted
Subsidiary of the Company, (ii) make loans or advances to the Company or any
Restricted Subsidiary of the Company or (iii) transfer any of its properties or
assets to the Company or any Restricted Subsidiary of the Company, except for
such encumbrances or restrictions existing under or by reason of (a) the Credit
Agreement as in effect as of the date of this Indenture, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof or any other Credit Facility, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements, refinancings or other Credit Facilities
are no more restrictive with respect to such dividend and other payment
restrictions than those contained in the Credit Facilities as in effect on the
date of this Indenture, (b) this Indenture and the Securities, (c) applicable
law or regulations or any order, ruling or other determination by a
governmental regulatory authority, (d) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries (through the acquisition of Capital Stock or through a merger or
consolidation) as in effect at the time of such acquisition (except, in the
case of Indebtedness, to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person and its Subsidiaries, or the property or assets
of the Person and its Subsidiaries, so acquired, provided that, in the case of
Indebtedness, such Indebtedness or Disqualified Stock was permitted by the
terms of this Indenture to be incurred, (e) by reason of customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (f) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions
of the nature described in clause (iii) above on the property so acquired, (g)
Permitted Refinancing Debt, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Debt are no more restrictive
than those contained in the agreements governing the Indebtedness being
refinanced or (h) any instrument governing Indebtedness or preferred stock of a
Restricted Subsidiary in existence on the date of this Indenture.
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Section 4.9. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company or 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 (as determined in
good faith by a resolution of the Board of Directors set forth in an Officer's
Certificate delivered to the Trustee, which determination shall be conclusive
evidence of compliance with this provision) of the assets or Equity Interests
issued or sold or otherwise disposed of and (ii) the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of cash,
Cash Equivalents or assets that are useful in the Energy Business ("Energy
Business Assets"); provided that (A) the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance
sheet), of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the
Securities or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability and (y) any non-
cash consideration received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days of closing such Asset Sale, shall be
deemed to be cash for purposes of this provision (to the extent of the cash
received) and (B) the Company or such Restricted Subsidiary may accept
consideration (including consideration in the form of assumption of
liabilities) from such Asset Sale in other than cash, Cash Equivalents and
Energy Business Assets if the aggregate fair market value (as determined in
good faith by the Company's Board of Directors and evidenced by a resolution of
such Board) of all consideration from all Asset Sales since the date hereof
that is other than cash, Cash Equivalents and Energy Business Assets ("Other
Consideration") at the time of such Asset Sale, less the sum of the amount of
any cash and Cash Equivalents and the fair market value (as determined in good
faith by the Company's Board of Directors and evidenced by a resolution of such
Board) of any Energy Business Assets realized from, or received in exchange
for, any Other Consideration prior to the time of such Asset Sale, does not
exceed 5% of Total Assets at the time of such Asset Sale.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to
reduce Senior Debt, Guarantor Senior Indebtedness or Pari Passu Debt (provided
that, in connection with a reduction of Pari Passu Debt, the Company or such
Restricted Subsidiary redeems a pro rata portion of the Securities), (b) to
acquire a controlling interest in another Energy Business if, as a result of
such acquisition, such other Energy Business became a Restricted Subsidiary,
(c) to make capital expenditures in respect of the Company's or its Restricted
Subsidiaries' Energy Business, (d) to purchase long-term assets that are used
or useful in such Energy Business or (e) to repurchase any Securities. Pending
the final application of any such Net Proceeds, the Company may temporarily
reduce Senior Debt that is revolving debt or otherwise invest such Net Proceeds
in any manner that is not prohibited by this Indenture. Any Net Proceeds from
Asset Sales that are not applied as provided in the first sentence of this
paragraph shall (after the expiration of the 360 day period specified in the
first sentence of this paragraph) be deemed to constitute "Excess Proceeds."
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When the aggregate amount of Excess Proceeds from one or more
Asset Sales exceeds $10 million, the Company shall make an offer to all Holders
of the Securities and, to the extent required by the terms of Pari Passu Debt,
to all holders or lenders thereof (an "Asset Sale Offer") to purchase the
maximum principal amount of the Securities and any such Pari Passu Debt to
which the Asset Sale Offer applies that may be purchased out of the Excess
Proceeds, at an offer price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon to the date of purchase and,
with respect to Pari Passu Debt, any applicable premium specified in the
agreements relating thereto, in accordance with the procedures set forth in
this Indenture or the agreements governing the Pari Passu Debt, as applicable.
To the extent that the aggregate principal amount of the
Securities and Pari Passu Debt tendered pursuant to an Asset Sale Offer, plus
accrued and unpaid interest thereon to the date of purchase and, if applicable,
premium on Pari Passu Debt, is less than the Excess Proceeds, the Company or
any Restricted Subsidiary may use any remaining Excess Proceeds for general
corporate purposes.
If the aggregate principal amount of the Securities surrendered
by Holders thereof and other Pari Passu Debt surrendered by holders or lenders
thereof, collectively, plus accrued and unpaid interest thereon to the date of
purchase and, if applicable, premium on Pari Passu Debt, exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities and Pari Passu Debt to
be purchased on a pro rata basis, based on the aggregate principal amount
thereof surrendered in such Asset Sale Offer.
Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
Section 4.10. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien securing Indebtedness of any kind (other than
Permitted Liens) upon any of its property or assets, now owned or hereafter
acquired, unless contemporaneously therewith all payments under the Securities
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
No Subsidiary Guarantor, if any, shall directly or indirectly
create, incur, assume or suffer to exist any Lien that secures obligations
under any Pari Passu Debt or under any subordinated Indebtedness of such
Subsidiary Guarantor on any asset or property of such Subsidiary Guarantor or
any income or profits therefrom, or assign or convey any right to receive
income therefrom, unless the Subsidiary Guarantee, if any, of such Subsidiary
Guarantor is equally and ratably secured with the obligations so secured or
until such time as such obligations are no longer secured by a Lien.
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Section 4.11. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
the Securities shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount of the Securities plus accrued and unpaid interest if any, thereon to
the date of purchase (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
stating: (1) a description of the transaction or transactions that constitute
the Change of Control; (2) that the Change of Control Offer is being made
pursuant to this Section 4.11 and that all Securities tendered shall be
accepted for payment; (3) the purchase price and the purchase date described
below; (4) that any Security not tendered shall continue to accrue interest, if
any; (5) that, unless the Company defaults in the payment of the Change of
Control Payment, all Securities accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest, if any, after the Change of
Control Payment Date; (6) that Holders electing to have any Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Securities completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business
Day preceding the Change of Control Payment Date; (7) that Holders shall be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Securities
delivered for purchase, and a statement that such Holder is withdrawing his
election to have the Securities purchased; and (8) that Holders whose
Securities are being purchased only in part shall be issued new Securities
equal in principal amount to the unpurchased portion of the Securities
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable to such party in connection with the repurchase of the Securities as
a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of the covenant
described hereunder, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under the covenant described hereunder by virtue thereof.
(b) On a Business Day that is no earlier than 30 days nor
later than 60 days from the date that the Company mails or causes to be mailed
notice of the Change of Control to the Holders (the "Change of Control Payment
Date"), the Company shall, to the extent lawful, (i) accept for payment all
Securities or portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all the Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the relevant
Securities so accepted together with an Officers' Certificate stating the
aggregate principal amount of such Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder
of the Securities so tendered the Change of
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Control Payment for such Securities, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each
tendering Holder a new Security equal in principal amount to any unpurchased
portion of the Securities surrendered, if any; provided that each such new
Security shall be in a principal amount of $1,000 or an integral multiple
thereof. Prior to complying with the provisions of this Section 4.11, but in
any event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of the Securities required by this Section 4.11. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are
applicable.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and purchases all Securities (or
portions thereof) validly tendered and not withdrawn under such Change of
Control Offer.
Section 4.12. Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any of
its Affiliates (each of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Subsidiary than those that would have been obtained in
a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to an
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $2 million but less than or equal to $5
million, an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above, (b) with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate consideration
in excess of $5 million but less than or equal to $10 million, a resolution of
the Board of Directors set forth in an Officer's Certificate certifying that
such Affiliate Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved in good faith by a majority of the
members of the Board of Directors who are disinterested with respect to such
Affiliate Transaction, which resolution shall be conclusive evidence of
compliance with this provision, and (c) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal, engineering or investment banking firm of national
standing; provided that the following shall not be deemed Affiliate
Transactions: (1) transactions contemplated by any employment agreement or
other compensation plan or arrangement
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entered into by the Company or any of its Subsidiaries in the ordinary course
of business and consistent with the past practice of the Company or such
Subsidiary, (2) transactions between or among the Company and/or its
Subsidiaries, (3) Restricted Payments and Permitted Investments that are
permitted by Section 4.6 hereof and (4) the following agreements in effect on
the date hereof: (i) that certain Lease Agreement dated May 11, 1987 between
Texas International Petroleum Corporation, predecessor to Energy Centre, Inc.,
and Eastern American Energy Corporation ("Eastern American"), including all
amendments thereto; (ii) that certain Agreement dated June 30, 1993 between
Kenneth W. Brill and the Company granting the Company an option to purchase
15,400 shares of the Company's common stock owned by Mr. Brill; (iii) that
certain Buy-Sell Stock Option Agreement dated May 20, 1997] between F. H.
McCullough, III, Kathy L. McCullough and the Company granting the Company an
option to purchase 11,920 shares of the Company's Common Stock owned jointly by
F. H. McCullough, III and Kathy L. McCullough; (iv) that certain Buy-Sell Stock
Option Agreement dated July 8, 1996 between Kenneth W. Brill and the Company
granting the Company an option to purchase 64,000 shares of the Company's
common stock owned by Mr. Brill; (v) the Eastern American Incentive Stock Plan
implemented by the Company in 1987; (vi) those certain Incentive Stock Option
Agreements dated December 1994 between the Company and J. Michael Forbes,
Donald C. Supcoe and Richard E. Heffelfinger, granting the individuals the
option to purchase 3,200, 3,200 and 6,400 shares of the Company's common stock,
respectively; and (vii) Drilling Programs between the Company and its officers
and directors.
Section 4.13. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or its Restricted Subsidiaries may enter into a sale and leaseback
transaction if (i) the Company could have incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the test set forth in the first paragraph of Section 4.7 hereof or
(ii) the gross cash proceeds of such sale and leaseback transaction are at
least equal to the fair market value (as determined in good faith by a
resolution the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee, which determination shall be conclusive evidence of
compliance with this provision) of the property that is the subject of such
sale and leaseback transaction and the transfer of assets in such sale and
leaseback transaction is permitted by, and the Company applies the net proceeds
of such transaction in compliance with Section 4.9 hereof.
Section 4.14. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.
(a) The Company shall not permit any Restricted Subsidiary to
guarantee the payment of any Indebtedness of the Company or any Indebtedness of
any other Restricted Subsidiary (in each case, the "Guaranteed Debt" ) unless
(i) if such Restricted Subsidiary is not a Subsidiary Guarantor, such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture, substantially in the form of Exhibit D hereto or such other form as
may be reasonably satisfactory to the Trustee and the Company, to this
Indenture providing for a Subsidiary Guarantee of payment of the Securities by
such Restricted Subsidiary, (ii) if the Securities or the Subsidiary
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Guarantee (if any) of such Restricted Subsidiary are subordinated in right of
payment to the Guaranteed Debt, the Subsidiary Guarantee under the supplemental
indenture shall be subordinated to such Restricted Subsidiary's guarantee with
respect to the Guaranteed Debt substantially to the same extent as the
Securities or the Subsidiary Guarantee are subordinated to the Guaranteed Debt
under this Indenture, (iii) if the Guaranteed Debt is by its express terms
subordinated in right of payment to the Securities or the Subsidiary Guarantee
(if any) of such Restricted Subsidiary, any such guarantee of such Restricted
Subsidiary with respect to the Guaranteed Debt shall be subordinated in right
of payment to such Restricted Subsidiary's Subsidiary Guarantee with respect to
the Securities substantially to the same extent as the Guaranteed Debt is
subordinated to the Securities or the Subsidiary Guarantee (if any) of such
Restricted Subsidiary, (iv) such Restricted Subsidiary waives and will not in
any manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Subsidiary Guarantee; and (v) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that (A) such Subsidiary Guarantee of the Securities has been duly executed and
authorized and (B) such Subsidiary Guarantee of the Securities constitutes a
valid, binding and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity; provided that this paragraph (a) shall not be applicable
to any guarantee of any Restricted Subsidiary that (A) existed at the time such
Person became a Restricted Subsidiary of the Company and (B) was not incurred
in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary of the Company.
(b) Notwithstanding the foregoing and the other provisions of
this Indenture, any Subsidiary Guarantee by a Restricted Subsidiary of the
Securities shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture ) or (ii) in the case of a guarantee incurred pursuant to clause
(a) of this covenant, the release or discharge of the guarantee which resulted
in the creation of such Subsidiary Guarantee, except a discharge or release by
or as a result of payment under such guarantee.
Section 4.15. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries.
The Company shall not sell or otherwise dispose of any shares of
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of
any shares of its Capital Stock except (i) to the Company or a Wholly Owned
Restricted Subsidiary, (ii) if, immediately after giving effect to such
issuance, sale or other disposition, such Restricted Subsidiary remains a
Restricted Subsidiary, (iii) shares of nonvoting
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Capital Stock of Restricted Subsidiaries may be issued or sold to employees or
directors of the Company or any Subsidiary; or (iv) if all shares of Capital
Stock of such Restricted Subsidiary are sold or otherwise disposed of;
provided, however, that in connection with any sale pursuant to this clause
(iv), the Company may retain no more than 10% of the outstanding Capital Stock
of the Restricted Subsidiary being sold as security for the payment of the
purchase price in connection with such sale or as security for the payment or
performance of any other obligation or liability of the purchaser in connection
therewith. In connection with any such sale or disposition of Capital Stock,
the Company shall comply with Section 4.9 hereof.
Section 4.16. Corporate Existence.
Subject to Article 5 hereof, the Company and the Subsidiaries
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of the Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Subsidiary and (ii) the rights (charter, partnership
agreement and statutory), licenses and franchises of the Company and the
Subsidiaries; provided, however, that the Company and the Subsidiaries shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of the Subsidiaries, if the
Board of Directors of the relevant Person shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and the Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Securities.
Section 4.17. No Layering.
Notwithstanding the provisions of Section 4.7 hereof, the Company
shall not incur, create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is subordinate or junior in right of payment to any
Senior Debt and senior in any respect in right of payment to the Securities.
No Subsidiary Guarantor, if any, shall incur any Indebtedness if such
Indebtedness is expressly subordinate in right of payment to any Guarantor
Senior Indebtedness of such Subsidiary Guarantor unless such Indebtedness is
Senior Subordinated Indebtedness of such Subsidiary Guarantor or is
contractually subordinated in right of payment to Senior Subordinated
Indebtedness of such Subsidiary Guarantor. The foregoing limitations shall not
apply to distinctions between categories of Indebtedness that exist by reason
of any Liens arising or created in accordance with the provisions of this
Indenture in respect of some but not all such Indebtedness.
Section 4.18. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any material respect in any business other than the
Energy Business.
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ARTICLE 5
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Substantially All
Assets.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to another Person,
and the Company may not permit any of its Restricted Subsidiaries to enter into
any such transaction or series of transactions if such transaction or series of
transactions would, in the aggregate, result in a sale, assignment, transfer,
lease, conveyance, or other disposition of all or substantially all of the
properties or assets of the Company to another Person unless (i) the Company is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (the "Surviving Entity") is a corporation organized or existing under the
laws of the United States, any state thereof or the District of Columbia; (ii)
the Surviving Entity (if the Company is not the continuing obligor under this
Indenture) assumes all the obligations of the Company under the Securities and
this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately before and after giving effect
to such transaction or series of transactions no Default or Event of Default
exists; (iv) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Company and its Subsidiaries which becomes the obligation
of the Company or any of its Subsidiaries as a result of such transaction as
having been incurred at the time of such transaction or series of
transactions), the Consolidated Net Worth of the Company and its Subsidiaries
or the Surviving Entity (if the Company is not the continuing obligor under
this Indenture) is equal to or greater than the Consolidated Net Worth of the
Company and its Subsidiaries immediately prior to such transaction or series of
transactions; (v) each Subsidiary Guarantor, if any, unless it is the other
party to the transactions described above, shall have by supplemental indenture
confirmed that its Subsidiary Guarantee, if any, shall apply to such Person's
obligations under this Indenture and the Securities; (vi) the Company or
Surviving Entity (if the Company is not the continuing obligor under this
Indenture) will, at the time of such transaction or series of transactions and
after giving pro forma effect thereto as if such transaction or series of
transactions had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the test set forth in the first paragraph of Section 4.7 hereof;
and (vii) the Company will have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with the Indenture; provided that (x) in giving such opinion such
counsel may rely on such Officer's Certificate as to any matters of fact
(including without limitation as to compliance with the foregoing clauses
(iii), (iv) and (v), and (y) no Opinion of Counsel will be required for a
consolidation, merger or transfer described in the last paragraph of this
Section 5.1; provided, however that the requirements of clause (iv) and (vi)
above shall not apply with respect to a merger of the Company with and into a
Wholly Owned Restricted Subsidiary, a
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merger of a Wholly Owned Restricted Subsidiary with and into the Company or a
merger of a Wholly Owned Restricted Subsidiary with and into another Wholly
Owned Restricted Subsidiary.
Any Indebtedness that becomes an obligation of the Company or any
Restricted Subsidiary (or that is deemed to be incurred by any Restricted
Subsidiary that becomes a Restricted Subsidiary) as a result of such
transaction undertaken in compliance with this covenant, and any Refinancing
Indebtedness with respect thereto, shall be deemed to have been Incurred in
compliance with Section 4.7.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the Surviving
Entity shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the Surviving Entity and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the obligation
to pay the principal of and interest on the Securities except in the case of a
sale of all of the Company's assets that meets the requirements of Section 5.1
hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest, if any,
on the Securities when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(2) the Company defaults in the payment of the principal of or
premium, if any, on the Securities, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(3) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Article 5 hereof;
(4) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Sections 4.3, 4.6, 4.7,
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4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17 and 4.18 hereof and
the Default continues for the period and after the notice specified
below;
(5) the Company fails to comply with any of its other agreements
or covenants in, or provisions of, the Securities or this Indenture and
the Default continues for 60 consecutive days after the notice specified
below;
(6) except as permitted herein, any Subsidiary Guarantee, if
any, shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or
a Subsidiary Guarantor, if any, or any Person acting on behalf of such
Subsidiary Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee;
(7) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or shall be created
hereafter, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date
of such default (a "Payment Default") or (b) results in the acceleration
of such Indebtedness prior to its express maturity and, in each case,
the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there is
then existing a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million (or its equivalent in any other
currency) or more;
(8) a final non-appealable judgment or order or final non-
appealable judgments or orders are rendered against the Company or any
Restricted Subsidiary that remain unpaid or discharged for a period of
90 days and that require the payment of money, either individually or in
an aggregate amount, in excess of $10 million (net of applicable
insurance coverage which is acknowledged in writing by the insurer or
which has been determined to be applicable by a final, non-appealable
determination by a court of competent jurisdiction);
(9) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding,
(b) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian of it or
for all or substantially all of its property or
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(d) makes a general assignment for the benefit of its
creditors;
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted
Subsidiary in an involuntary case or proceeding,
(b) appoints a Custodian of the Company or any
Restricted Subsidiary or for all or substantially all of the
property of the Company or any Restricted Subsidiary or
(c) orders the liquidation of the Company or any
Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 consecutive days.
The term "Bankruptcy Law" means Title 11, United States Code, or
any similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the then outstanding Securities notify the Company and the Trustee,
of the Default and the Company does not cure the Default within 30 consecutive
days after receipt of the notice. A Default under clause (5) is not an Event
of Default until the Trustee notifies the Company, or the Holders of at least
25% in principal amount of the then outstanding Securities notify the Company
and the Trustee, of the Default and the Company does not cure the Default
within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default."
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default specified
in clauses (9) and (10) of Section 6.1 hereof) relating to the Company or any
Subsidiary Guarantor, if any, occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities by written notice to the Company and the Trustee, may
declare the unpaid principal amount of and any accrued and unpaid interest on
all the Securities to be due and payable immediately. If payment of the
Securities is accelerated because of an Event of Default, the Company or the
Trustee shall notify the holders of Designated Senior Debt of such
acceleration. Upon such declaration the principal and interest shall be due
and payable immediately; provided, however, that so long as any Designated
Senior Debt or any commitment therefor is outstanding, any such notice or
declaration shall not become effective until the earlier of (a) five Business
Days after such notice is delivered to the representative for the Designated
Senior Debt or (b) the acceleration of any Designated Senior Debt and
thereafter, payments on the Securities pursuant to this Article 6
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shall be made only to the extent permitted pursuant to Article 10 herein.
Notwithstanding the foregoing, if any Event of Default specified in clause (9)
or (10) of Section 6.1 hereof relating to the Company, or any Subsidiary
occurs, such an amount shall ipso facto become and be immediately due and
payable without any declaration or other act or notice on the part of the
Trustee or any Holder.
After a declaration of acceleration under this Indenture, but
before a judgment or decree for payment of principal, premium, if any, and
interest on the Securities due under this Article 6 has been obtained by the
Trustee, Holders of a majority in principal amount of the then outstanding
Securities by written notice to the Company and the Trustee may rescind an
acceleration and its consequences if (i) the Company or any Subsidiary
Guarantor, if any, has paid or deposited with the Trustee a sum sufficient to
pay (a) all sums paid or advanced by the Trustee under this Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and (b) all overdue interest on the Securities, if any,
(ii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iii) all existing Events of Default (except
nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration) have been cured or waived.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Security in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Securities waive any existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of principal of, premium and liquidated damages, if any,
or interest on, the Securities (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Securities may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration). Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
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Section 6.5. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Securities or that may
involve the Trustee in personal liability it being understood that (subject to
Section 7.1) the Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such holders.
Section 6.6. Limitation on Suits.
A Holder of a Security may pursue a remedy with respect to this
Indenture or the Securities only if:
(a) the Holder of a Security gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Securities make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Security or Holders of Securities offer
and, if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Holder of a Security may not use this Indenture to prejudice the rights of
another Holder of a Security or to obtain a preference or priority over another
Holder of a Security.
Section 6.7. Rights of Holders of Securities to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Security to receive payment of principal, premium, if any,
and interest on the Security, on or after the respective due dates expressed in
the Security (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
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Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company or any Subsidiary
Guarantor, if any, for the whole amount of principal of, premium, if any, and
interest remaining unpaid on the Securities and interest on overdue principal
and, to the extent lawful, interest and 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.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Securities allowed in any judicial proceedings relative
to the Company or any Subsidiary Guarantors, if any (or any other obligor upon
the Securities), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and may be a member of the creditors' committee.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall, subject to the provisions of Article 10, pay out the money in the
following order:
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First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.8 and 7.7 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;
Second: to Senior Debt to the extent required by Article 10;
Third: to Holders of Securities for amounts due and unpaid on
the Securities for principal, premium, if any, and accrued interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if
any, and accrued interest, as the case may be, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Security pursuant to Section 6.7 hereof, or a suit by Holders of more than 10%
in principal amount of the then outstanding Securities.
Section 6.12. Stay, Extension and Usury Laws.
Each of the Company and the Subsidiary Guarantors, if any,
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and each of the Company and the Subsidiary Guarantors, if
any (to the extent that it may lawfully do so), hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
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ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any notices, requests,
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its
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rights and powers under this Indenture at the request of any Holders, unless
such Holder shall have furnished to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Subsidiary
Guarantor, if any, shall be sufficient if signed by an Officer of the Company
or such Subsidiary Guarantor.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have furnished to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Sections 4.1 and 4.4 hereof, the
Trustee shall have no duty to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 4.1, 4.4 and 6.1(1) or (2) hereof or
(ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual
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knowledge. For the purposes of this clause (g) only, "actual knowledge" shall
mean the actual fact or statement of knowing, without any duty to make
investigation with regard thereto.
(h) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(i) The Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, conditions, or agreements on
the part of the Company, except as otherwise set forth herein, but the Trustee
may require of the Company full information and advice as to the performance of
the covenants, conditions and agreements contained herein and shall be entitled
in connection herewith to examine the books, records and premises of the
Company.
(j) The permissive rights of the Trustee to perform the acts
enumerated in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or willful misconduct.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, the
Subsidiary Guarantors, if any, or any Affiliate of the Company with the same
rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the
Securities, or the Subsidiary Guarantees, if any, it shall not be accountable
for the Company's use of the proceeds from the Securities or any money paid to
the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or in any certificate delivered
pursuant hereto or any statement in the Securities or any other document in
connection with the sale of the Securities or pursuant to this Indenture other
than its certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is actually known to the Trustee, the Trustee shall mail to Holders of
Securities a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on, any Security, the Trustee may
withhold the
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notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Securities.
Section 7.6. Reports by Trustee to Holders of the Securities.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Securities remain
outstanding, the Trustee shall mail to the Holders of the Securities a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2) and transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
of Securities shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Securities are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the
Securities are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
The Company and the Subsidiary Guarantors, if any, shall pay to
the Trustee from time to time such compensation as the parties shall agree in
writing from time to time for its acceptance of this Indenture and services
hereunder, including, without limitation, extraordinary services such as
default administration. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company and the
Subsidiary Guarantors, if any, shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company and the Subsidiary Guarantors, if any, shall
indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company and the Subsidiary
Guarantors, if any (including this Section 7.7), and investigating or defending
itself against any claim (whether asserted by the Company, the Subsidiary
Guarantors, if any, or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company and the Subsidiary Guarantors, if any, promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company and the
Subsidiary Guarantors, if any, shall not relieve the Company and the Subsidiary
Guarantors, if any, of their obligations hereunder. The Company and the
Subsidiary Guarantors, if any, shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company and the Subsidiary Guarantors, if any, shall pay the reasonable fees
and expenses of such
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counsel. The Company and the Subsidiary Guarantors, if any, need not pay for
any settlement made without their consent, which consent shall not be
unreasonably withheld.
The obligations of the Company and the Subsidiary Guarantors, if
any, under this Section 7.7 are joint and several and shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's and the Subsidiary Guarantors', if any,
payment obligations in this Section, the Trustee shall have a Lien prior to the
Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on particular Securities.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(9) or (10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of
Securities of a majority in principal amount of the then outstanding Securities
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
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If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of Securities of at least 10% in principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Security
who has been a Holder of a Security for at least six months, fails to comply
with Section 7.10, such Holder of a Security may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Securities. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee is subject to TIA Section
310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Securities upon compliance with the conditions set forth below in this Article
8.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company and the Subsidiary
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.4 hereof, be deemed to have been discharged from their
obligations with respect to all outstanding Securities and the Subsidiary
Guarantees, if any, thereof on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.5
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Securities
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities to
receive payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due from the trust fund described in
Section 8.4 hereof, and as more fully set forth in such Section, (b) the
Company's obligations with respect to such Securities under Article 2 and
Section 4.2 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.2 notwithstanding the prior exercise
of its option under Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company and the Subsidiary
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.4 hereof, be released from their obligations under the
covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.17 and 4.18 hereof and in clause (iv) of Section 5.1 and
the covenants contained in the Subsidiary Guarantees, if any, 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 "outstanding" for the purposes of any compliance
certificate, direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with
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such covenants, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Securities shall not be
deemed outstanding for accounting purposes). For this purpose, 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 Section 6.1 hereof, but, except as
specified above, the remainder of this Indenture, such Securities and such
Subsidiary Guarantees, if any, shall be unaffected thereby. In addition, upon
the Company's exercise under Section 8.1 hereof of the option applicable to
this Section 8.3 hereof, subject to the satisfaction of the conditions set
forth in Section 8.4 hereof, Sections 6.1(3) (but only with respect to the
Company's failure to observe or perform the covenants, conditions and
agreements of the Company under clause (iv) of Section 5.1), 6.1(4), 6.1(7) and
6.1(8) hereof shall not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Securities, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding
Securities on the stated maturity or on the applicable redemption date,
as the case may be, and the Company must specify whether the Securities
are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding 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;
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(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Section 6.1(9) or 6.1(10) hereof is concerned, at
any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by which
the Company or any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of the Securities over the other
creditors of the Company, or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
Section 8.5. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the
outstanding 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 Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
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The Company and the Subsidiary Guarantors, if any, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.4 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.6. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Security and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as a general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and the
Subsidiary Guarantors, if any, under this Indenture, the Securities and the
Subsidiary Guarantees, if any, shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof, as the case may be;
provided, however, that if the Company or any Subsidiary Guarantor, if any,
makes any payment of principal of, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Company or such Subsidiary
Guarantor, if any, shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Securities.
Notwithstanding Section 9.2 of this Indenture, the Company, the
Subsidiary Guarantors, if any, and the Trustee may amend or supplement this
Indenture, the Securities or the Subsidiary Guarantees, if any, without the
consent of any Holder of a Security:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(c) to provide for the assumption of the Company's obligations
or any Subsidiary Guarantor's, if any, obligations to the Holders of the
Securities in the case of a merger or consolidation pursuant to Article
5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Securities or that does not
adversely affect the legal rights hereunder of any Holder of the
Security;
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(f) to add a Subsidiary Guarantee under this Indenture.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, if
any, as the case may be, authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.2 hereof, the Trustee shall join with the Company and
the Subsidiary Guarantors, if any, in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders of Securities.
Except as provided below in this Section 9.2, the Company, the
Subsidiary Guarantors, if any, and the Trustee may amend or supplement this
Indenture, the Securities and the Subsidiary Guarantees, if any, with the
consent of the Holders of at least a majority in aggregate
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principal amount of the Securities then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Securities), and, subject to Sections 6.4 and 6.7
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Securities, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for the Securities).
Any amendment to the provisions of Article 10 of this Indenture
shall require the consent of the Holders of at least 66 2/3% in principal
amount of the Securities then outstanding if such amendment would adversely
affect the rights of Holders of such Securities; provided that, no amendment
may be made to the provisions of Article 10 of this Indenture that adversely
affects the rights of any holder of Senior Debt then outstanding unless the
holders of such Senior Debt (or any group or representative thereof authorized
to consent) consent to such change.
Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority
in aggregate principal amount of the Securities then outstanding may waive
compliance in a particular instance by the Company or any Subsidiary Guarantor,
if any, with any provision of this Indenture, the Securities or the Subsidiary
Guarantee, if any. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Securities held by a
non-consenting Holder):
(a) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Security;
(c) reduce the rate of or change the time for payment of
interest on any Security;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least
a majority in principal amount of such Securities and a waiver of the
payment default that resulted from such acceleration);
(e) make any Security payable in money other than that stated
in the Securities;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of
Securities to receive payments of principal or premium, if any, or
interest on the Securities;
(g) make any change in the foregoing amendment and waiver
provisions; or
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(h) except as provided for in Article 8 hereof, release a
Subsidiary Guarantor, if any, from its obligations under its Subsidiary
Guarantee, if any, or make any change in a Subsidiary Guarantee, if any,
that would adversely affect the Holders.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, if
any, as the case may be, authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Securities as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee shall join with the Company and the Subsidiary
Guarantors, if any, in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture affects the Trustee's own rights,
duties or immunities under this indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Securities affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
of a Security and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. However, any such
Holder of a Security or subsequent Holder of a Security may revoke the consent
as to its Security if the Trustee receives written notice of revocation before
the date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
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Section 9.5. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may issue and the Trustee shall authenticate new
Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6. Trustee to Sign Amendment, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
Neither the Company nor any Subsidiary Guarantor, if any, may sign an amendment
or supplemental Indenture until its respective Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.1) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture and that there has been compliance with all
conditions precedent.
ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security
agrees, that (i) the Indebtedness evidenced by the Securities, including, but
not limited to, the payment of principal of, premium, if any, and interest on
the Securities, and any other payment Obligation of the Company in respect of
the Securities (including any obligation to repurchase the Securities) is
subordinated in right of payment, to the extent and in the manner provided in
this Article, to the prior payment in full in cash of all Senior Debt of the
Company, whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed, which will include borrowings under the Credit
Agreement, and (ii) the subordination is for the benefit of the holders of
Senior Debt. The Securities shall in all respects rank pari passu with all
other Senior Subordinated Indebtedness of the Company and only Indebtedness of
the Company that is Senior Debt shall rank senior to the Securities in
accordance with the provisions set forth herein. For purposes of these
subordination provisions, the Indebtedness evidenced by the Securities is
deemed to include the liquidated damages payable pursuant to the provisions set
forth in the Securities and the Exchange and Registration Rights Agreement.
All provisions of this Article 10 shall be subject to Section 10.12.
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Section 10.2. Designated Senior Debt.
All Designated Senior Debt now or hereafter existing and all
other Obligations relating thereto shall not be deemed to have been paid in
full unless the holders or owners thereof shall have received payment in full
in cash (or other form of payment consented to by the holders of such
Designated Senior Debt) with respect to such Designated Senior Debt and all
other Obligations with respect thereto.
Section 10.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of property or securities to
creditors of the Company in a liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, or in an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities:
(1) the holders of Senior Debt of the Company shall be entitled
to receive payment in full in cash of all Obligations in respect of such
Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt, whether
or not a claim for such interest would be allowed in such proceeding)
before the Holders of Securities shall be entitled to receive any
payment with respect to the Securities; and
(2) until all Obligations with respect to Senior Debt are paid
in full, any distribution to which the Holders of the Securities would
be entitled shall be made to the Holders of Senior Debt.
In each case, notwithstanding the foregoing, Holders of Securities may receive
Equity Interests and securities that are subordinated at least to the same
extent as the Securities are subordinated to Senior Debt and payments made from
any defeasance trust created pursuant to Section 8.1 hereof provided that the
applicable deposit does not violate Article 8 or 10 of this Indenture.
To the extent any payment of or distribution in respect of Senior
Debt (whether by or on behalf of the Company or any Subsidiary Guarantor, if
any, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment or distribution is
recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated
and outstanding as if such payment had not occurred. To the extent the
obligation to repay any Senior Debt is declared to be fraudulent, invalid or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then the obligation so declared fraudulent, invalid
or otherwise set aside (and all other amounts that would come due with respect
thereto had such obligation not been so affected) shall be deemed
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to be reinstated and outstanding as Senior Debt for all purposes hereof as if
such declaration, invalidity or setting aside had not occurred.
Section 10.4. Default on Designated Senior Debt.
The Company may not make any payment (whether by redemption,
purchase, retirements, defeasance or otherwise) upon or in respect of the
Securities (other than payment of Equity Interests and securities that are
subordinated at least to the same extent as the Securities are subordinated to
Senior Debt and payments and other distributions made from any defeasance trust
created pursuant to Section 8.1 hereof if the applicable deposit does not
violate Article 8 or 10 of this Indenture), until all principal and other
Obligations with respect to the Senior Debt of the Company have been paid in
full if:
(i) a default in the payment of any principal of, premium,
if any, or interest on Designated Senior Debt occurs; or
(ii) any other default occurs and is continuing with respect
to Designated Senior Debt that permits, or with the giving of notice or
passage of time or both (unless cured or waived) would permit, holders
of the Designated Senior Debt as to which such default relates to
accelerate its maturity ("non-payment default") and the Trustee receives
a notice of the default (a "Payment Blockage Notice") from the Company
or the holders of any Designated Senior Debt.
If the Trustee receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section unless and
until 360 days shall have elapsed since the date of commencement of the payment
blockage period resulting from the immediately prior Payment Blockage Notice.
No non-payment default in respect of any Designated Senior Debt that existed or
was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice, unless such default shall have been cured or waived for a period of no
less than 90 days.
The Company shall resume payments on and distributions in respect
of the Securities upon:
(1) in the case of a default referred to in Section 10.4(i)
hereof the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 10.4(ii)
hereof, the earliest of (1) the date on which such nonpayment default is
cured or waived and (2) 179 days after the date on which the applicable
Payment Blockage Notice is received unless (A) the maturity of any
Designated Senior Debt has been accelerated or (B) a Default or Event of
Default under Section 6.1(9) or (10) has occurred and is continuing,
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if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.5. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event
of Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.6. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment
or distribution of or in respect of any Obligations with respect to the
Securities at a time when such payment or distribution is prohibited by Section
10.3 or Section 10.4 hereof, such payment or distribution shall be held by the
Trustee (if the Trustee has actual knowledge that such payment or distribution
is prohibited by Section 10.3 or 10.4) or such Holder, in trust for the benefit
of, and shall be paid forthwith over and delivered to, the holders of Senior
Debt as their interests may appear or their Representative under the indenture
or other agreement (if any) pursuant to which such Senior Debt may have been
issued, as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and, except as provided in
Section 10.12, shall not be liable to any such holders if the Trustee shall pay
over or distribute to or on behalf of Holders of Securities or the Company or
any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
Section 10.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company or any Subsidiary Guarantor, if any,
that would cause a payment of any Obligations with respect to the Securities or
the related Subsidiary Guarantees, if any, to violate this Article, but failure
to give such notice shall not affect the subordination of the Securities and
the related Subsidiary Guarantees, if any, to the Senior Debt as provided in
this Article.
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Section 10.8. Subrogation.
After all Senior Debt is paid in full and until the Securities
are paid in full, Holders of Securities shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Securities) to the
rights of holders of Senior Debt to receive distributions and payments
applicable to Senior Debt to the extent that distributions and payments
otherwise payable to the Holders of Securities have been applied to the payment
of Senior Debt. A payment or distribution made under this Article to holders
of Senior Debt that otherwise would have been made to Holders of Securities is
not, as between the Company and Holders of Securities, a payment by the Company
on the Securities.
Section 10.9. Relative Rights.
This Article defines the relative rights of Holders of Securities
and the holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Securities,
the obligation of the Company, which is absolute and unconditional, to
pay principal of and interest on the Securities in accordance with their
terms;
(2) affect the relative rights of Holders of Securities and
creditors of the Company other than their rights in relation to holders
of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Securities.
If the Company fails because of this Article to pay principal of
or interest on a Security on the due date, the failure is still a Default or
Event of Default.
Section 10.10. Subordination May Not Be Impaired by Company or
the Subsidiary Guarantors.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided in this Article Ten will at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or any Subsidiary Guarantor, if any, or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Company or
any Subsidiary Guarantor, if any, with the terms of this Indenture, regardless
of any knowledge thereof that any such holder of Senior Debt may have or
otherwise be charged with. The provisions of this Article Ten are intended to
be for the benefit of, and shall be enforceable directly by, the holders of
Senior Debt.
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Section 10.11. Payment, Distribution or Notice to
Representative.
Whenever a payment or distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article 10, the Trustee and the Holders of
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such Representative or of
the liquidating trustee or agent or other Person making any payment or
distribution to the Trustee or to the Holders of Securities for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other Indebtedness of the
Company or any Subsidiary Guarantor, if any, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10.
Section 10.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Securities unless the Trustee shall have received at
its Corporate Trust Office at least one Business Day prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Securities to violate this Article, which notice shall
specifically refer to Section 10.3 or 10.4 hereof. Only the Company or a
Representative may give the notice. Nothing in this Article 10 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.7
hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
Section 10.13. Authorization to Effect Subordination.
Each Holder by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.9 hereof at least 30 days before the expiration of the time to file
such claim, each lender under the Credit Agreement is hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Securities and the
related Subsidiary Guarantees, if any.
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Section 10.14. Amendments.
No amendment may be made to the provisions of or the definitions
of any terms appearing in this Article 10, or to the provisions of Section 6.2
relating to the Designated Senior Debt, that adversely affects the rights of
any holder of Senior Debt then outstanding unless the holders of such Senior
Debt (or any group or Representative authorized to give a consent) consent to
such change.
Section 10.15. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 10.9 of
this Indenture, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (c) release any Person liable in any manner for
the collection of Senior Debt; and (d) exercise or refrain from exercising any
rights against the Company and each Subsidiary Guarantor, if any, and any other
Person.
Section 10.16. Not To Prevent Events of Default or Limit Right
To Accelerate.
The failure to make a payment pursuant to the Securities by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect
on the right of the Holders of the Securities or the Trustee to accelerate the
maturity of the Securities.
Section 10.17. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in
trust under Article 8 by the Trustee for the payment of principal of and
interest on the Securities shall not be subordinated to the prior payment of
any Senior Debt or subject to the restrictions set forth in this Article 10,
and none of the Holders of the Securities shall be obligated to pay over any
such amount to the Company or any holder of Senior Debt of the Company or any
other creditor of the Company.
Section 10.18. "Trustee" to Include Paying Agent.
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 10 shall in such case (unless the context
shall otherwise require) be construed as extending to and including
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such Paying Agent within its meaning as fully and for all intents and purposes
as if such Paying Agent were named in this Article 10 in place of the Trustee.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control. If any provisions of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the letter provision
shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
Section 11.2. Notices.
Any notice or communication by the Company or the Subsidiary
Guarantors, if any, or the Trustee to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, to the others' address:
If to the Company or any Subsidiary Guarantor, if any:
Energy Corporation of America
4643 South Ulster Street
Suite 1100
Denver, Colorado 80237
Telecopier No.: (303) 694-2763
Attention: John Mork
With a copy to:
Andrews & Kurth LLP
4200 Texas Commerce Tower
Houston, Texas 77002
Telecopier No.: (713) 220-4285
Attention: Thomas P. Mason
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If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
The Company or any Subsidiary Guarantor, if any, or the Trustee,
by notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if by telecopy; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company or any Subsidiary Guarantor, if any, mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.
Section 11.3. Communication by Holders of Securities with Other
Holders of Securities.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Subsidiary Guarantors, if any, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor, if any, to the Trustee to take any action under this Indenture, the
Company or such Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee:
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(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 11.6. Acts of Holders; Rules by Trustee and Agents.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent 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.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
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Section 11.7. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company or a Subsidiary Guarantor, if any, as such, shall have any
liability for any obligations of the Company or any Subsidiary Guarantor under
the Securities, any Subsidiary Guarantee, if any, or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Securities, by accepting a Security, waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of
the Commission that such a waiver is against public policy.
Section 11.8. Governing Law.
THE SUBSTANTIVE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES,
IF ANY.
Section 11.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or their respective Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture and the Subsidiary Guarantees, if any.
Section 11.10. Successors.
All agreements of the Company and each Subsidiary Guarantor, if
any, in this Indenture, the Securities and the Subsidiary Guarantees, if any,
shall bind its respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
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Section 11.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of
May 23, 1997 ENERGY CORPORATION OF AMERICA
By: /s/ JOHN MORK
-------------------------------
Name: John Mork
-------------------------------
Title: CEO
-------------------------------
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-------------------------------
Name: Walter N. Gitlin
-------------------------------
Title: Vice-President
-------------------------------
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EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
SERIES A NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
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THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY, ANY SUBSIDIARY GUARANTOR, IF ANY, OR ANY AFFILIATE OF THE COMPANY OR
ANY SUBSIDIARY GUARANTOR, IF ANY, WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH CASE, ONLY IF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
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_____% Senior Subordinated Notes due 2007
No. $________
CUSIP Number:
ENERGY CORPORATION OF AMERICA
promises to pay to
or registered assigns,
the principal sum of
DOLLARS on __________, 2007.
Interest Payment Dates: ____________ and _________________
Record Dates: ______________________ and _________________
(the rest of this page left blank intentionally)
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ENERGY CORPORATION OF AMERICA
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
This is one of the Securities referred
to in the within-mentioned
Indenture:
THE BANK OF NEW YORK
as Trustee
By
---------------------------------
Authorized Signatory
Dated: _______________, ____
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(Back of Security)
[ ]% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. Energy Corporation of America, a West Virginia
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate of [ ]% per annum, which interest shall be payable in
cash semiannually in arrears on each ________ and ________, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"); provided that the first Interest Payment Date shall be _______.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. Method of Payment. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this
Security as of the close of business on the ________ or ________ immediately
preceding such Interest Payment Date (the "Record Date"), even if this Security
is cancelled after such Record Date and on or before such Interest Payment
Date, except as provided in Section 2.11 of the Indenture with respect to
defaulted interest. Principal, premium, if any, and interest on this Security
will be payable at the office or agency of the Company maintained for such
purpose within the City and State of New York or, in the event the Securities
do not remain in book-entry form, at the option of the Company, payment of
interest may be made by check mailed to the Holder of this Security at its
address set forth in the register of Holders of Securities; provided that all
payments with respect to the Global Securities and definitive Securities having
an aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any Subsidiary Guarantor, if any, or any other of the
Company's Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Securities under an
Indenture dated as of May [ ], 1997 ("Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
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Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Securities are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Securities are
general unsecured obligations of the Company equal in an aggregate principal
amount to $200,000,000 and will mature on [ ], 2007.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $200.0 million aggregate principal amount
(subject to Section 2.7 of the Indenture). This Security is one of the Initial
Notes referred to in the Indenture. The Securities include the Initial Notes
and any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on the incurrence of Indebtedness by
the Company and its Restricted Subsidiaries, the payment of dividends and other
distributions on the Capital Stock of the Company and its Restricted
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases or redemptions
of Subordinated Indebtedness, the sale or transfer of assets and Capital Stock
of Restricted Subsidiaries, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Subsidiaries and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Optional Redemption.
(a) The Securities are not redeemable at the Company's option
prior to [ ], 2002. From and after [ ], 2002, the Securities
will be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on [ ] of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . [ ]%
2003 . . . . . . . . . . . . . . . . . . . . [ ]%
2004 . . . . . . . . . . . . . . . . . . . . [ ]%
2005 and thereafter . . . . . . . . . . . . . . 100.0000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, prior to [ ], 2000 the Company may, at its option, on any
one or more occasions, redeem up to 33 1/3% of the original aggregate principal
amount of the Securities at a redemption price equal to $[ ] of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the
redemption date,
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with the net proceeds of public sales of Common Stock of the Company; provided
that at least 66 2/3% of the original aggregate principal amount of the
Securities must remain outstanding immediately after the occurrence of such
redemption; and provided, further, that any such redemption shall occur within
60 days after the date of the closing of the related sale of such Common Stock.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Securities.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, thereon to the date of
purchase (the "Change of Control Payment"). The right of the Holders of the
Securities to require the Company to repurchase such Securities upon a Change
of Control may not be waived by the Trustee without the approval of the Holders
of the Securities required by Section 9.2 of the Indenture. Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Securities pursuant to the procedures
required by the Indenture and described in such notice. The Change of Control
Payment shall be made on a business day not less than 30 days nor more than 60
days after such notice is mailed. The Company and each Subsidiary Guarantor,
if any, will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders
of the Securities and, to the extent required by the terms of Pari Passu Debt,
to all holders or lenders thereof (an "Asset Sale Offer") to purchase the
maximum principal amount of the Securities and any such Pari Passu Debt to the
extent required by the terms thereof that may be purchased out of the Excess
Proceeds, at an offer price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon to the date of purchase and,
with respect to Pari Passu Debt, any applicable premium specified in the
agreements relating thereto, in accordance with the procedures set forth in
Section 3.9 of the Indenture or the agreements governing the Pari Passu Debt,
as applicable.
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To the extent that the aggregate principal amount of the
Securities and Pari Passu Debt tendered pursuant to an Asset Sale Offer, plus
accrued and unpaid interest thereon to the date of purchase, if applicable,
premium on Pari Passu Debt, is less than the Excess Proceeds, the Company or
any Restricted Subsidiary may use any remaining Excess Proceeds for general
corporate purposes.
If the aggregate principal amount of the Securities surrendered
by Holders thereof and other Pari Passu Debt surrendered by holders or lenders
thereof, collectively, plus accrued and unpaid interest thereon to the date of
purchase, and, if applicable, premium on Pari Passu Debt, exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities and Pari Passu Debt to
be purchased on a pro rata basis, based on the aggregate principal amount
thereof surrendered in such Asset Sale Offer.
Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Securities are to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part but only
in integral multiples of $1,000, unless all of the Securities held by a Holder
are to be redeemed. On and after the redemption date interest ceases to accrue
on the aggregate principal amount of the Securities called for redemption.
9. Denominations, Transfer, Exchange. The Securities may be
issued initially in the form of one or more fully registered Global Securities.
The Securities may also be issued in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part.
Also, it need not exchange or register the transfer of any Security for a
period of 15 days before a selection of Securities to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a
Security may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at
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least a majority in aggregate principal amount of the Securities then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or the tender offer or exchange offer for, such
Securities), and any existing Default or Event of Default under, or compliance
with any provision of the Indenture or the Securities may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Securities. Without the consent of any Holder of a Security, the
Indenture or the Securities may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Securities in
addition to or in place of certificated Securities, to provide for the
assumption of the Company's obligations or any Subsidiary Guarantor's, if any,
obligation to Holders of the Securities in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to the
Holders of the Securities or that does not adversely affect the legal rights
under the Indenture of any such Holder, to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act or to add a Subsidiary Guarantee under the
Indenture.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Securities (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium, if
any, on the Securities (whether or not prohibited by the provisions of Article
10 of the Indenture); (iii) failure by the Company to comply with the
provisions of Article 5 of the Indenture; (iv) failure by the Company for 30
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding to comply with
the provisions of Sections 4.3, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.17 and 4.18 of the Indenture; (v) failure by the Company for 60
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding to comply with
any of its other agreements or covenants in, or provisions of, this Security or
in the Indenture; (vi) except as permitted by the Indenture, any Subsidiary
Guarantee, if any, shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or a
Subsidiary Guarantor, if any, or any Person acting on behalf of such Subsidiary
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; (vii) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Restricted Subsidiary
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there is then existing a Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million (or its
equivalent in any other currency) or more; (viii) a final non-appealable
judgment or order or final
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non-appealable judgments or orders are rendered against the Company or any
Restricted Subsidiary that remain unpaid or discharged for a period of 90 days
and that require the payment in money, either individually or in an aggregate
amount, that is more than $10 million (net of applicable insurance coverage
which is acknowledged in writing by the insurer or which has been determined to
be applicable by a final, non-appealable determination by a court of competent
jurisdiction); and (ix) certain events of bankruptcy or insolvency with respect
to the Company or any Restricted Subsidiary. If any Event of Default (other
than an Event of Default described in clause (ix) above) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities may declare all the Securities to be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency with respect to
the Company or any Restricted Subsidiary, all outstanding Securities will
become due and payable without further action or notice. Holders of the
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
the Securities notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders of
a majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Securities
waive any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment of
interest or premium on, or the principal of, the Securities. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, within 5 Business days after
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. Subordination. The Securities are subordinated to Senior
Debt of the Company. To the extent provided in the Indenture, Senior Debt must
be paid before the Securities may be paid. The Company agrees, and each Holder
by accepting a Security agrees, that the Indebtedness evidenced by the
Securities, including, but not limited to, the payment of principal of,
premium, if any, and interest on the Securities, and any other payment
Obligation of the Company in respect of the Securities is subordinated in right
of payment, to the extent and in the manner provided in the Indenture, to the
prior payment in full in cash of all Senior Debt of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed) and authorizes the Trustee to give effect and appoints the Trustee
as attorney-in-fact for such purpose.
14. Trustee Dealings with Company. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor
of the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any
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conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue or resign.
15. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities, by accepting a
Security, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities. Such waiver may not
be effective to waive liabilities under the federal securities laws and it is
the view of the Commission that such a waiver is against public policy.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Energy Corporation of America
4643 South Ulster Street
Suite 1100
Denver, Colorado 80237
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
-------------------- ----------------------
Signature Guarantee:(*)
-------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is three years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or
Section 2.6(d)(i)(A) of the Indenture); or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
- --------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with Regulation
S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933), that has furnished to the Trustee
a signed letter containing certain representations and
agreements (the form of which letter appears as Exhibit C
to the Indenture); or
7 [ ] transferred pursuant to another available exemption from
the registration requirements of the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering
any such transfer of the Securities, in their sole discretion, such legal
opinions, certifications and other information as the Trustee or the Company
may reasonably request to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:(*)
- ---------------------------------- ------------------------------
(Signature must be guaranteed) Signature
- --------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.9 or 4.11 of the Indenture, check the box below:
Section 4.9 Section 4.11
If you want to elect to have only part of the Security purchased
by the Company pursuant to Section 4.9 or Section 4.11 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
-------------- ------------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:(*)
----------------
- ----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Amount Signature of
Amount of decrease Amount of increase of this Global authorized officer
in Principal in Principal Security following of Trustee or
Date of Amount of this Amount of this such decrease or Securities
Exchange Global Security Global Security increase Custodian
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EXHIBIT B
EXHIBIT B
(Form of Face of Exchange Note)
SERIES B NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
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_____% Senior Subordinated Notes due 2007
No. $__________
CUSIP Number:
ENERGY CORPORATION OF AMERICA
promises to pay to
or registered assigns,
the principal sum of
DOLLARS on __________, 2007.
Interest Payment Dates: ____________ and _________________
Record Dates: ______________________ and _________________
(the rest of this page left blank intentionally)
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ENERGY CORPORATION OF AMERICA
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
This is one of the Securities
referred to in the within-mentioned
Indenture:
THE BANK OF NEW YORK
as Trustee
By
------------------------------------
Authorized Signatory
Dated: ,
--------------- ----
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(Back of Security)
[ ]% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Energy Corporation of America, a
Delaware corporation (the "Company"), promises to pay interest on the principal
amount of this Security at the rate of [ ]% per annum, which interest shall be
payable in cash semiannually in arrears on each ________ and ________, or if
any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"); provided that the first Interest Payment Date
shall be ________. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of original issuance. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
2. Method of Payment. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this
Security as of the close of business on the ________ or ________ immediately
preceding such Interest Payment Date (the "Record Date"), even if this Security
is cancelled after such Record Date and on or before such Interest Payment
Date, except as provided in Section 2.11 of the Indenture with respect to
defaulted interest. Principal, premium, if any, and interest on this Security
will be payable at the office or agency of the Company maintained for such
purpose within the City and State of New York or, in the event the Securities
do not remain in book-entry form, at the option of the Company, payment of
interest may be made by check mailed to the Holder of this Security at its
address set forth in the register of Holders of Securities; provided that all
payments with respect to the Global Securities and definitive Securities having
an aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any Subsidiary Guarantor, if any, or any other of the
Company's Subsidiaries may act in any such capacity.
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4. Indenture. The Company issued the Securities under an
Indenture dated as of May [ ], 1997 ("Indenture") among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Securities are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are general unsecured obligations of the Company equal in an
aggregate principal amount to $200,000,000 and will mature on [ ], 2007.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $50.0 million aggregate principal amount
(subject to Section 2.7 of the Indenture). This Security is one of the
Exchange Notes referred to in the Indenture. The Securities include the
Initial Notes and any Exchange Notes issued in exchange for the Initial Notes
pursuant to the Indenture and the Registration Rights Agreement. The Initial
Notes and the Exchange Notes are treated as a single class of securities under
the Indenture. The Indenture imposes certain limitations on the incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment of
dividends and other distributions on the Capital Stock of the Company and its
Restricted Subsidiaries, the purchase or redemption of Capital Stock of the
Company and Capital Stock of such Restricted Subsidiaries, certain purchases or
redemptions of Subordinated Indebtedness, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock
of Restricted Subsidiaries, the investments of the Company and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the
ability of the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption.
(a) The Securities are not redeemable at the Company's option
prior to [ ], 2002. From and after [ ], 2002, the Securities
will be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on [ ] of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . [ ]%
2003 . . . . . . . . . . . . . . . . . . . . . . [ ]%
2004 . . . . . . . . . . . . . . . . . . . . . . [ ]%
2005 and thereafter . . . . . . . . . . . . . . 100.0000%
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(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, prior to [ ], 2000 the Company may, at its option, on any
one or more occasions, redeem up to 33 1/3% of the original aggregate principal
amount of the Securities at a redemption price equal to $[ ] of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the
redemption date, with the net proceeds of public sales of Common Stock of the
Company; provided that at least 66 2/3% of the original aggregate principal
amount of the Securities must remain outstanding immediately after the
occurrence of such redemption; and provided, further, that any such redemption
shall occur within 60 days after the date of the closing of the related sale of
such Common Stock.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Securities.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, thereon to the date of
purchase (the "Change of Control Payment"). The right of the Holders of the
Securities to require the Company to repurchase such Securities upon a Change
of Control may not be waived by the Trustee without the approval of the Holders
of the Securities required by Section 9.2 of the Indenture. Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Securities pursuant to the procedures
required by the Indenture and described in such notice. The Change of Control
Payment shall be made on a business day not less than 30 days nor more than 60
days after such notice is mailed. The Company and each Subsidiary Guarantor,
if any, will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders
of the Securities and, to the extent required by the terms of Pari Passu Debt,
to all holders or lenders thereof (an "Asset Sale Offer") to purchase the
maximum principal amount of the Securities and any such Pari Passu Debt to the
extent required by the terms thereof that may be purchased out of the Excess
Proceeds, at an offer price in cash equal
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to 100% of the principal amount thereof plus accrued and unpaid interest
thereon to the date of purchase and, with respect to Pari Passu Debt, any
applicable premium specified in the agreements relating thereto, in accordance
with the procedures set forth in Section 3.9 of the Indenture or the agreements
governing the Pari Passu Debt, as applicable. To the extent that the aggregate
principal amount of the Securities and Pari Passu Debt tendered pursuant to an
Asset Sale Offer, plus accrued and unpaid interest thereon to the date of
purchase, if applicable, premium on Pari Passu Debt, is less than the Excess
Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
the Securities surrendered by Holders thereof and other Pari Passu Debt
surrendered by holders or lenders thereof, collectively, plus accrued and
unpaid interest thereon to the date of purchase, and, if applicable, premium on
Pari Passu Debt, exceeds the amount of Excess Proceeds, the Trustee shall
select the Securities and Pari Passu Debt to be purchased on a pro rata basis,
based on the aggregate principal amount thereof surrendered in such Asset Sale
Offer. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Securities are to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part but only
in integral multiples of $1,000, unless all of the Securities held by a Holder
are to be redeemed. On and after the redemption date interest ceases to accrue
on the aggregate principal amount of the Securities called for redemption.
9. Denominations, Transfer, Exchange. The Securities may be
issued initially in the form of one or more fully registered Global Securities.
The Securities may also be issued in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part.
Also, it need not exchange or register the transfer of any Security for a
period of 15 days before a selection of Securities to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a
Security may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then outstanding (including, without
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limitation, consents obtained in connection with a purchase of, or the tender
offer or exchange offer for, such Securities), and any existing Default or
Event of Default under, or compliance with any provision of the Indenture or
the Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities. Without the consent of
any Holder of a Security, the Indenture or the Securities may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated
Securities, to provide for the assumption of the Company's obligations or any
Subsidiary Guarantor's, if any, obligation to Holders of the Securities in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Securities or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act or to add a
Subsidiary Guarantee under the Indenture.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Securities (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium, if
any, on the Securities (whether or not prohibited by the provisions of Article
10 of the Indenture); (iii) failure by the Company to comply with the
provisions of Article 5 of the Indenture; (iv) failure by the Company for 30
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding to comply with
the provisions of Sections 4.3, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.17 and 4.18 of the Indenture; (v) failure by the Company for 60
consecutive days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding to comply with
any of its other agreements or covenants in, or provisions of, this Security or
in the Indenture; (vi) except as permitted by the Indenture, any Subsidiary
Guarantee, if any, shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or a
Subsidiary Guarantor, if any, or any Person acting on behalf of such Subsidiary
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; (vii) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Restricted Subsidiary
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there is then existing a Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million (or its
equivalent in any other currency) or more; (viii) a final non-appealable
judgment or order or final non-appealable judgments or orders are rendered
against the Company or any Restricted Subsidiary
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that remain unpaid or discharged for a period of 90 days and that require the
payment in money, either individually or in an aggregate amount, that is more
than $10 million (net of applicable insurance coverage which is acknowledged in
writing by the insurer or which has been determined to be applicable by a
final, non-appealable determination by a court of competent jurisdiction); and
(ix) certain events of bankruptcy or insolvency with respect to the Company or
any Restricted Subsidiary. If any Event of Default (other than an Event of
Default described in clause (ix) above) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company or any
Restricted Subsidiary, all outstanding Securities will become due and payable
without further action or notice. Holders of the Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Securities notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Securities waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest or
premium on, or the principal of, the Securities. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, within 5 Business days after becoming
aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. Subordination. The Securities are subordinated to Senior
Debt of the Company. To the extent provided in the Indenture, Senior Debt must
be paid before the Securities may be paid. The Company agrees, and each Holder
by accepting a Security agrees, that the Indebtedness evidenced by the
Securities, including, but not limited to, the payment of principal of,
premium, if any, and interest on the Securities, and any other payment
Obligation of the Company in respect of the Securities is subordinated in right
of payment, to the extent and in the manner provided in the Indenture, to the
prior payment in full in cash of all Senior Debt of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed) and authorizes the Trustee to give effect and appoints the Trustee
as attorney-in-fact for such purpose.
14. Trustee Dealings with Company. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor
of the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any
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conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue or resign.
15. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities, by accepting a
Security, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities. Such waiver may not
be effective to waive liabilities under the federal securities laws and it is
the view of the Commission that such a waiver is against public policy.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Energy Corporation of America
4643 South Ulster Street
Suite 1100
Denver, Colorado 80237
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act
for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
----------------- --------------------
Signature Guarantee:(*)
-------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is three years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or
Section 2.6(d)(i)(A) of the Indenture); or
2 [ ] transferred to the Company; or
- --------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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3 [ ] transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with Regulation
S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933), that has furnished to the Trustee
a signed letter containing certain representations and
agreements (the form of which letter appears as Exhibit C
to the Indenture); or
7 [ ] transferred pursuant to another available exemption from
the registration requirements of the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering
any such transfer of the Securities, in their sole discretion, such legal
opinions, certifications and other information as the Trustee or the Company
may reasonably request to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
---------------------------------
Signature
Signature Guarantee:*
- ------------------------------- ---------------------------------
(Signature must be guaranteed) Signature
- ----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Securities
Exchange this Global Security this Global Security decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.9 or 4.11 of the Indenture, check the box below:
[ ] Section 4.9 [ ] Section 4.11
If you want to elect to have only part of the Security purchased
by the Company pursuant to Section 4.9 or Section 4.11 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
------------------ ----------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:(*)
-------
- ----------------------------------
(*/) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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EXHIBIT C
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
Energy Corporation of America
c/o The Bank of New York
101 Barclay Street
New York, New York 10286
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the % Senior Subordinated Notes due __________ (the
"Securities") of Energy Corporation of America (the "Company").
Upon transfer, the Securities would be registered in the name of
the new beneficial owner as follows:
Name:
--------------------------------------
Address:
--------------------------------------
Taxpayer ID Number:
------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rules 501(a)(1), (2), (3) and (7) under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Securities, and we are acquiring the Securities not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities and invest in or purchase securities
similar to the
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Securities in the normal course of our business. We and any accounts for which
we are acting are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Securities to offer, sell
or otherwise transfer such Securities prior to the date which is two years
after the later of the date of original issue and the last date on which the
Company of any affiliate of the Company was the owner of such Securities (or
any predecessor thereto) (the "Resale Restriction Termination Date") only (a)
to the Company, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) in a transaction complying
with the requirements of Rule 144A under the Securities Act to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIP")
that purchases for its own account or for the account of a QIP and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rules 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor", in each case in a
minimum principal amount of Securities of $250,000, or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resales will
not apply subsequent to the Resale Restriction Termination Date, if any resale
or other transfer of the Securities is proposed to be made pursuant to clause
(e) above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of this
letter to the Company and the Trustee, which shall provide, among other things,
that the transferee is an institutional "accredited investor" within the
meaning of Rules 501(a)(1), (2), (3) or (7) under the Securities Act and that
it is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to the offer, sale or
other transfer prior to the Resale Termination Date of the Securities pursuant
to clause (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications or other information satisfactory to the Company and
the Trustee.
Transferee:
-------------------
By:
---------------------------
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EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSIDIARY GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indentures) dated as of
________________, between _____________________ (the "Subsidiary Guarantors"),
a subsidiary of Energy Corporation of America (or its successor), a company
incorporated under the laws of the State of West Virginia (the "Company"), and
The Bank of New York, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of May 23, 1997, providing for
the issuance of an aggregate principal amount at maturity of $200,000,000 of 9-
1/2% Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, Section 4.14 of the Indenture provides that, under
certain circumstances, the Company is required to cause the Subsidiary
Guarantor to execute and deliver to the Trustee a Subsidiary Guarantee on the
terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Subsidiary Guarantor and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Notes as follows:
1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the
meanings as signed to them in the Indenture.
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2. INDENTURE PROVISION PURSUANT TO WHICH GUARANTEE IS GIVEN.
This Supplemental Indenture is being executed and delivered
pursuant to Section 4.14 of the Indenture.
3. AGREEMENTS TO GUARANTEE.
The Subsidiary Guarantor hereby agrees as follows:
(a) The Subsidiary Guarantor, jointly and severally with all
other Subsidiary Guarantors, if any, unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, regardless of the validity and enforceability of the
Indenture, the Notes and the obligations of the Company under the Indenture and
the Notes, that:
(i) the principal of, premium, and interest on the Notes
shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if
any, and interest on the Notes, to the extent lawful, and all other obligations
of the Company to the Holders or the Trustee thereunder shall be promptly paid
in full, all in accordance with the terms thereof; and
(ii) in case of any extension of time for payment or
renewal of any Notes or any of such other obligations, that the same shall be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under this Supplemental Indenture and its
Subsidiary Guarantee shall be limited to such amount as will not, after giving
effect thereto, and to all other liabilities of the Subsidiary Guarantor,
result in such amount constituting a fraudulent transfer or conveyance.
4. SUBORDINATION.
The Subsidiary Guarantor agrees, and each Holder by accepting a
Note agrees, that (a) the obligations of the Subsidiary Guarantor under this
Subsidiary Guarantee are subordinated in right of payment to the prior payment
in full (when due) of all existing and future Guarantor Senior
D-2
129
Indebtedness of the Subsidiary Guarantor, including without limitation any
guarantee by the Subsidiary Guarantor of the Indebtedness under the Credit
Agreement or of any Senior Debt of the Company or of any Guarantor Senior
Indebtedness of any other Subsidiary Guarantor, to the extent and in the matter
provided in Article 10 of the Indenture (as if the Subsidiary Guarantor were
the Company for purposes of such Article 10 and all defined terms used therein,
and the Guarantor Senior Indebtedness of the Guarantor were Senior Debt), and
this Subsidiary Guarantee is made subject to such provisions (which are hereby
incorporated herein by reference), and (b) such subordination is for the
benefit of and enforceable by the holders of Guarantor Senior Indebtedness of
the Subsidiary Guarantor.
5. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, the Subsidiary Guarantor hereby agrees that a notation
of such Subsidiary Guarantee substantially in the form of Annex A hereto shall
be endorsed by an officer of such Subsidiary Guarantor on each Note
authenticated and delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, the Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth herein shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
(c) If an officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds that office at the
time the Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of the Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of
the Subsidiary Guarantee set forth in this Supplemental Indenture on behalf of
the Subsidiary Guarantor.
(e) The Subsidiary Guarantor hereby agrees that its
obligations hereunder shall be unconditional, regardless of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgement
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.
D-3
130
(f) The Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenants that its Subsidiary Guarantee made pursuant to this Supplemental
Indenture will not be discharged except by complete performance of the
obligations contained in the Notes and the Indenture or pursuant to Section
6(b) of this Supplemental Indenture.
(g) If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Supplemental Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then, and in every such
case, subject to any determination in such proceeding, the Subsidiary
Guarantor, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Subsidiary Guarantor. the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
(h) The Subsidiary Guarantor hereby waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary Guarantor as a result of any payment by such Subsidiary
Guarantor under its Subsidiary Guarantee. The Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 of the Indenture for the purposes of
the Subsidiary Guarantee made pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of
such obligations as provided in such Article 6, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantor for the purpose of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture.
(i) The Subsidiary Guarantor shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor, if any, so long as
the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantee made pursuant to this Supplemental Indenture.
(j) The Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit
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or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of the Indenture or this Subsidiary Guarantee; and the Subsidiary Guarantor (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
6. SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
(a) Except as set forth in Articles 4 and 5 of the Indenture,
nothing contained in the Indenture, this Supplemental Indenture or in the Notes
shall prevent any consolidation or merger of the Subsidiary Guarantor with or
into the Company or any other Subsidiary Guarantor or shall prevent any
transfer, sale or conveyance of the property of the Subsidiary Guarantor as an
entirety or substantially as an entirety, to the Company or any other
Subsidiary Guarantor.
(b) Except as set forth in Article 5 of the Indenture, upon the
sale or disposition of all of the Capital Stock of the Subsidiary Guarantor by
the Company or the Subsidiary of the Company, or upon the consolidation or
merger of the Subsidiary Guarantor with or into any Person, or the sale of all
or substantially all of the assets of the Subsidiary Guarantor (in each case,
other than to an Affiliate of the Company), such Subsidiary Guarantor shall be
deemed automatically and unconditionally released and discharged from all
obligations under this Subsidiary Guarantee without any further action required
on the part of the Trustee or any Holder if no Default shall have occurred and
be continuing; provided, that in the event of an Asset Sale, the Net Proceeds
therefrom are treated in accordance with Section 4.9 of the Indenture. Except
with respect to transactions set forth in the preceding sentence, the Company
and the Subsidiary Guarantor covenant and agree that upon any such
consolidation, merger or transfer of assets, the performance of all covenants
and conditions of this Supplemental Indenture to be performed by such
Subsidiary Guarantor shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, by the corporation formed by such
consolidation, or into which the Subsidiary Guarantor shall have merged, or by
the corporation which shall have acquired such property. Upon receipt of an
Officer's Certificate of the Company or the Subsidiary Guarantor, as the case
may be, to the effect that the Company or such Subsidiary Guarantor has
complied with the first sentence of this Section 6(b), the Trustee shall
execute any documents reasonably requested by the Company or the Subsidiary
Guarantor, at the cost of the Company or such Subsidiary Guarantor, as the case
may be, in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Guarantee endorsed on the Notes and under the Indenture
and this Supplemental Indenture.
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7. RELEASES UPON RELEASE OF GUARANTEE OF GUARANTEED INDEBTEDNESS.
Concurrently with the release or discharge of the Subsidiary
Guarantor's guarantee of the payment of [describe indebtedness the guarantee of
which gave rise to the delivery of this Supplemental Indenture] ("Guaranteed
Debt") (other than a release or discharge by or as a result of payment under
such guarantee of Guaranteed Indebtedness), the Subsidiary Guarantor shall be
automatically and unconditionally released and relieved of its obligations
under this Supplemental Indenture and its Subsidiary Guarantee made pursuant to
Section 5 of this Supplemental Indenture. Upon delivery by the Company to the
Trustee of an Officer's Certificate to the effect that such release or
discharge has occurred, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Subsidiary Guarantor from its
obligations under this Supplemental Indenture and its Subsidiary Guarantee made
pursuant hereto; provided such documents shall not affect or impair the rights
of the Trustee and Paying Agent under Section 7.7 of the Indenture.
8. NEW YORK LAW TO GOVERN.
The substantive law of the State of New York shall govern and be
used to construe this Supplemental Indenture.
9. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
10. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall
not effect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ,
-------------------- -------
[SUBSIDIARY GUARANTOR]
By:
----------------------------------
Name:
Title:
Dated: ,
-------------------- -------
as Trustee
By:
----------------------------------
Name:
Title:
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ANNEX A TO SUPPLEMENTAL INDENTURE
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Each Subsidiary Guarantor (as defined in the Indenture) has jointly and
severally unconditionally guaranteed (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, whether at Stated
Maturity or an Interest Payment Date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue
principal and premium of, and interest, to the extent lawful, on the Notes and
(c) that in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, the same will be promptly paid in full when due
in accordance with the terms of the extension of renewal, whether at stated
maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to such amount as will not, after giving effect thereto, and to all
other liabilities of the Subsidiary Guarantor, result in such amount
constituting a fraudulent transfer or conveyance.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers.
Dated: ,
-------------------- -------
[SUBSIDIARY GUARANTOR]
By:
----------------------------------
Name:
Title:
Dated: ,
-------------------- -------
as Trustee
By:
----------------------------------
Name:
Title: